In Hwang v. Kan. State Univ., 2014 U.S. App. LEXIS 9949 (10th Cir. Kan., May 29, 2014), the Tenth Circuit offered its view of what constitutes a reasonable accommodation in the context of a leave of absence. The Tenth Circuit’s previous decision in Robert v. Board of County Commissioners of Brown County, 691 F.3d 1211, 1218 (10th Cir. 2012), had held that while an employer need not provide an employee with an indefinite leave of absence as an accommodation under the ADA, leave can be a reasonable accommodation where the employee can provide the employer with an estimated return-to-work date and that date is in the “near future.” The court’s holding in Hwang sheds light on the length of leave that may constitute a reasonable accommodation.
In Hwang, the plaintiff, a highly respected professor, fell ill shortly before the university’s fall semester. Plaintiff requested and received a six month paid leave of absence. At the end of her six-month leave of absence, plaintiff was advised by her physician to seek additional time off. Plaintiff asked the school to extend her leave through the spring semester, but the university denied her request for additional leave citing the university’s policy prohibiting more than six months’ sick leave under any circumstances. Plaintiff brought suit pursuant to the § 504 of the Rehabilitation Act of 1973, claiming that the university’s failure to extend her sick leave, and the university’s inflexible six-month leave policy amounted to disability discrimination. While acknowledging the fundamental proposition that a disabled plaintiff can establish a claim for discrimination by showing that she can perform essential functions of the position with reasonable accommodation and that the employer failed to provide such an accommodation, the Court concluded that: (1) in nearly all cases, an employee who cannot return to work for a period as long as six months is not capable of performing the essential functions with a reasonable accommodation; (2) requiring an employer to keep a job open for such an extended period of time does not qualify as a reasonable accommodation; and (3) reasonable accommodations such as adding ramps or allowing more flexible working hours are “all about enabling employees to work, not to not work.”
The court’s holding in Hwang permits employers to develop inflexible leave policies with a limited duration, so long as the duration is of sufficient duration and makes room for the possibility of a longer leave period if such an accommodation is required by law. However, employers are advised to keep in mind that developing a strict leave policy compromises an employer’s ability to exercise discretion in circumstances in which an employee request leave beyond the time-period provided in the policy. Should an employer chose to disregard the policy and permit a longer leave than provided by the policy for one employee, the employer may open itself to a claim of discriminatory treatment by other employees who are not granted similar extensions.
Employers should also be aware that appellate court rulings on this subject vary among judicial circuits, and while Hwang is binding precedent within the Tenth Circuit (Kansas, Oklahoma, New Mexico, Colorado, Wyoming, and Utah); the law in other states may vary.