Inflexible Leave Policy Allowed Under Rehabilitation Act, 10th Circuit Rules

Author: Gloria Ju

Date: June 10, 2014

In a ruling that seems contrary to the Equal Employment Opportunity Commission's (EEOC's) long-held stance advocating flexible leave policies as a reasonable accommodation, an employee lost her Rehabilitation Act claim based on her employer's refusal to provide additional leave beyond its six-month leave policy. While the Rehabilitation Act applies to the federal sector, this case is significant for private employers as well since courts similarly analyze cases under the Rehabilitation Act and the Americans with Disabilities Act (ADA).

In Hwang v. Kansas State University, an assistant professor took a six-month paid leave of absence to receive treatment for cancer. Near the end of the leave, following her doctor's advice, the professor requested additional unpaid leave. The school denied her request due to its inflexible leave policy allowing no more than six months of sick leave. The employee filed suit in a district court, claiming that the school violated the Rehabilitation Act by denying her more leave.

The district court dismissed her complaint. The 10th Circuit Court of Appeals agreed with the district court ruling and held that because the employee could not work at all for more than six months, she was unable to perform essential job functions even with a reasonable accommodation - one element of establishing a disability discrimination claim. "It perhaps goes without saying that an employee who isn't capable of working for so long isn't an employee capable of performing a job's essential functions - and that requiring an employer to keep a job open for so long doesn't qualify as a reasonable accommodation. After all, reasonable accommodations - typically things like adding ramps or allowing more flexible working hours - are all about enabling employees to work, not to not work," the appellate court held.

The assistant professor had relied on EEOC enforcement guidance on the ADA stating that if an employee needs additional unpaid leave as a reasonable accommodation, an employer "must" modify its policy. The court, however, pointed out another area of the enforcement guidance that says an employer does not have to retain an employee who is unable to perform essential job functions for six months just because another job the employee can perform will open up then. In the EEOC's own words, "six months is beyond a 'reasonable amount of time.'"

Not only did the appellate court find that the inflexible leave policy was not discriminatory, but it also found that a policy of this type can serve to protect individuals with disabilities by ensuring their leave requests "aren't secretly singled out for discriminatory treatment, as can happen in a leave system with fewer rules, more discretion, and less transparency." The court warned, however, that an inflexible leave policy may not be legal, if it provides an unreasonably short sick leave period (when providing a little more leave would allow an employee to perform essential job functions), or the inflexibility is a sham (i.e., employees without disabilities are granted flexibility that employees with disabilities are not).