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When Does Leave (as an ADA accommodation) Become Unreasonable?

Added by Hawley Troxell in Articles & Publications, Employment Law on June 30, 2014

Under the Americans with Disabilities Act (ADA), an employer must provide a reasonable accommodation to a qualified employee who has a disability. One potential accommodation is allowing the employee to take a leave of absence, for example, to receive necessary medical care, so that he or she can return and perform the job.

An issue that often comes up when a leave of absence is considered as an ADA accommodation is how long must the employer allow the employee to be on leave? This issue was recently addressed by the Tenth Circuit (which covers Oklahoma, Kansas, New Mexico, Colorado, Wyoming, and Utah) in Hwang v. Kansas State University. (Hwang addressed the issue in the context of the Rehabilitation Act. Because the Rehabilitation Act, like the ADA, protects individuals with disabilities from discrimination and has many of the same concepts as the ADA, the ruling is also relevant to the ADA.)

Hwang had a one-year teaching contract at Kansas State University (KSU). Before the fall term began, she learned that she had cancer and needed treatment. KSU granted her request for a six-month leave of absence to get treatment. After the six months of leave, her doctor advised her to ask for more time off. She asked for an additional six months of leave, but KSU denied her request, claiming that its inflexible leave policy allowed no more than six months of sick leave. When Hwang could not return to work after her six months of leave, KSU terminated her employment.

Hwang later sued, alleging that KSU violated the Rehabilitation Act by denying her the accommodation of more than six months of leave. The district court dismissed her complaint, and Hwang appealed to the Tenth Circuit.

On appeal, the Tenth Circuit affirmed. The Tenth Circuit held that Hwang’s claim failed because there was “no question she wasn’t able to perform the essential functions of her job even with a reasonable accommodation,” being that she had admitted that she “couldn’t work at any point or in any manner for a period spanning more than six months.” The Tenth Circuit explained that a “brief absence from work for medical care,” so that the employee “can proceed to discharge her essential job duties,” “may sometimes amount to a (legally required) reasonable accommodation.” But, according to the Tenth Circuit, lengthy leave, such as that sought by Hwang, was not a reasonable accommodation:

“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.”

. . . .

“[I]t’s difficult to conceive how an employee’s absence for six months—an absence in which she could not work from home, part-time, or in any way in any place—could be consistent with discharging the essential functions of most any job in the national economy today. Even if it were, it is difficult to conceive when requiring so much latitude from an employer might qualify as a reasonable accommodation.”

The Tenth Circuit also rejected the argument that all “inflexible” sick leave policies, like KSU’s, necessarily violated the Rehabilitation Act. In fact, the Tenth Circuit expressed that inflexible leave policies, while not being “categorically immune to attack,” may actually benefit employees with disabilities if the policy is applied consistently:

“Neither is there anything inherently discriminatory in the fact the University’s six-month leave policy is ‘inflexible,’ as Ms. Hwang would have us hold. To the contrary, in at least one way an inflexible leave policy can serve to protect rather than threaten the rights of the disabled—by ensuring disabled employees’ 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.”

Thus, the Tenth Circuit concluded that KSU’s inflexible leave policy was “more than sufficient to comply with the Act in nearly any case.”

The Hwang case is just one circuit court’s opinion. Nevertheless, the case does give employers some guidance about what leave accommodations may be required for employees who, because of a disability, are unable to perform their job for a lengthy period of time.

If you have questions about these or other ADA-related issues, please contact a member of our employment group or call 208.344.6000.