One of the many challenges facing human resource professionals is how to comply with the various (and sometimes inconsistent) requirements of state and federal laws when dealing with an employee who is on a medical leave of absence. The EEOC has suggested that an employer must allow a lengthy leave of absence unless it poses an "undue hardship" to the employer, and courts have provided little guidance about how much leave an employer must allow. On May 29, 2014, the US Court of Appeals for the Tenth Circuit (which includes the federal courts in Kansas and Colorado) affirmed a district court's judgment in favor of Kansas State University in a disability discrimination case and ruled that in general, requiring an employer to keep a job open for more than six months does not qualify as a "reasonable accommodation."
When dealing with employee medical issues, employers must comply with a variety of laws, including the Family and Medical Leave Act, workers' compensation laws, and state and federal laws prohibiting disability discrimination. An employee facing a serious illness may exhaust his or her entitlement to twelve weeks of leave under the FMLA but still may not be able to return to work. In that situation, an employer may have satisfied its obligations under the FMLA, but it still must consider whether to allow the employee additional time off as a reasonable accommodation under the Americans with Disabilities Act or similar state laws. Courts including the Tenth Circuit have long held that an employer need not provide an indefinite leave of absence to comply with the ADA's "reasonable accommodation" requirements. But decisions about exactly how much leave to provide have proved difficult for employers in the absence of more specific guidance from the courts.
In Hwang v. Kansas State University, Case No. 13-3070, 2014 WL 2212071 (10th Cir. May 29, 2014) the Court provided some much-needed clarification about the outer limits of an employer's obligation to provide a leave of absence as a reasonable accommodation under the ADA. The Court’s analysis was under the Rehabilitation Act, but it is equally applicable to the ADA. The Tenth Circuit noted that an employee may establish a claim for disability discrimination under the ADA by showing: (1) that she is qualified for her job; (2) that she can perform the essential functions of the job with or without a reasonable accommodation; and (3) that her employer failed to provide a reasonable accommodation although the employee requested one. Once the employee has established these elements, the employer generally can avoid liability only if it proves the requested accommodation would have posed an undue hardship on the employer.
The plaintiff in Hwang – a professor who requested and was given a six-month leave of absence for cancer treatment – argued that the University's policy, which allowed no more than six months of sick leave in any case, necessarily violated the law. Ms. Hwang had requested an additional leave of several months after her initial six-month leave, but her request was denied due to the University's inflexible policy. In support of her argument that this policy violated the law, Ms. Hwang pointed to the EEOC's 2002 Enforcement Guidance, which states that if an employee needs additional unpaid leave as a reasonable accommodation, the employer "must modify its 'no-fault' leave policy" (emphasis added) to provide additional leave to an employee, unless the employer can show that there is an alternative accommodation that would be effective or that granting the leave would pose an undue hardship. The court, however, noted that Ms. Hwang's argument concerning undue hardship and her reliance on the EEOC guidance skipped over the fundamental question of whether the requested modification to the University's leave policy was reasonable in the first place. Instead, the court focused its analysis on whether Ms. Hwang had met her burden of showing that she was able to perform the essential functions of her job with a reasonable accommodation.
In deciding whether Ms. Hwang was able to perform the essential functions of her job with a reasonable accommodation, the court held 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…requiring an employer to keep a job open for so long doesn't qualify as a reasonable accommodation." The court went on to note that the purpose of a reasonable accommodation is to enable an employee to work – not remain off work. Although the court was sympathetic to Ms. Hwang's situation, it made clear that the federal anti-discrimination laws are not intended to turn employers into "safety net providers" for those who are unable to work. The court acknowledged that an employer's analysis of whether a leave of absence will enable an employee to perform the essential functions of her job will depend on various factors such as: (1) the essential duties of the job; (2) the nature and length of the leave sought; and (3) impact on fellow employees. But the court also stated that "it'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."
Employers must continue to analyze requests for medical leaves of absence on an individual basis and consider whether each request is "reasonable" under the circumstances. Employers should always consider how they have handled leave requests by other, similarly situated employees and whether they have been consistent in the application of any leave policies. For example, as the court noted in Hwang, if other employees are routinely granted exceptions from leave policies that are not granted to disabled employees, an inference of discrimination will arise and an employer may be liable for disability discrimination. Even employers that adopt inflexible leave policies (policies that specify a maximum amount of leave for all employees) should consult with counsel to ensure that the policies are reasonable on their face, consistently applied and allow for longer leaves of absence if legally required in extraordinary circumstances.