When it comes to leave as a reasonable accommodation after FMLA leave is exhausted, employers have been conditioned to simply believe: inflexible leave policies bad, flexible leave policies good. In fact, many of us have become so good at this conditioning it would make Ivan Pavlov proud [you know, the guy who conditioned his dog to salivate when food was presented].
Now, a court is telling us that inflexible leave policies might actually protect disabled individuals in the workplace? Tell me more.
Grace, an assistant professor at Kansas State University, was a good instructor who was having quite a difficult year. After signing a one-year contract to teach but before fall classes started, she received news that she had cancer and required treatment. She requested and was granted a six-month leave of absence. As that leave period drew to a close and spring semester was about to begin, she asked for more time off, promising to return by the summer term.
One hurdle stood in Grace’s way: the University’s inflexible leave policy limiting employees to no more than six months of leave. When Grace could not return, KSU terminated her employment. Grace sued, complaining that denying her more than six months’ leave violated the Rehabilitation Act (a statute identical in all respects to the ADA).
The trial court quickly dismissed Grace’s legal claims and a federal appellate court reviewing the decision agreed with the dismissal. Why? The appellate court explained it this way. If an employee needs a “brief” absence from work, it may be “legally required” so that the employee can perform their essential job duties. However, anything longer likely is not defensible:
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.
So, how do you draw a line between a “brief” respite and a leave period that is “so long”? Initially, it depends on the essential duties in question, the nature and length of the leave sought, and the impact on fellow employees. For example, “taking extensive time off may be more problematic, say, for a medical professional who must be accessible in an emergency than a tax preparer who’s just survived April 15.”
This case is chalk full of so many juicy one-liners that it might be the ADA’s version of The Godfather. [Well, not really, but you know how excited I can get about this stuff.]
Judge for yourself the court’s musings:
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.
Or this one:
[Grace's] is a terrible problem, one in no way of her own making, but it’s a problem other forms of social security aim to address. The Rehabilitation Act seeks to prevent employers from callously denying reasonable accommodations that permit otherwise qualified disabled persons to work — not to turn employers into safety net providers for those who cannot work.
And it even found a way to turn the EEOC’s own words on itself:
The [EEOC] expressly states [in its enforcement guidance on reasonable accommodations] that an employer does not have to retain an employee unable to perform her essential job functions for six months just because another job she can perform will open up then. An employer doesn’t have to do so much, the EEOC says, “because six months is beyond a reasonable amount of time” . . . Here then the EEOC seems to agree with our conclusion that holding onto a non-performing employee for six months just isn’t something the Rehabilitation Act ordinarily compels. (My emphasis)
Dang! Glad I was not on the other side of that smack down. Read the opinion here (pdf): Hwang v. Kansas State Univ.
Inflexible Leave Policies Actually Protect the Disabled?
The court didn’t stop there, suggesting that an “inflexible” six month leave policy actually tends to protect the rights of the disabled, reasoning that these policies ensure that “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.”
As a result, the court opined that a six-month leave policy is “more than sufficient to comply with the Act in nearly any case.”
Insights for Employers
Before employers start breaking out Marlon Brando’s whiskey and amaretto, let’s not crown this decision just yet. On one hand, its reasoning is of tremendous value to employers, who collectively have been yearning for guidance on how much leave they have to provide their employees before termination becomes an option. In short, what we learn from this decision is that a six-month leave of absence will almost always satisfy the requirements of the ADA/Rehabilitation Act. That’s good news.
On the other hand, this is the opinion of one appellate court (covering the states of Colorado, Kansas, New Mexico, Oklahoma, Utah, Wyoming). If you placed this issue in front of a handful of other appellate courts, an employer could end up with a far different result — or one that was not nearly as precise as this court’s guidance. Even this Corleone-like court hedged its bets a bit, finding that some leave is usually required, and employers must avoid sham leave policies that are not consistently applied. And the decision may cause us to lose sight of an important principle — to individually assess the situation of every employee so as to help return them to work.
Here are my takeaways from this latest court decision:
- Remain committed to the ADA’s interactive process. As this court pointed out, a lengthy six-month absence is a generous one, but when that time is up, we still have an obligation to the ADA’s interactive process. Doing so helps us understand what the employee might need to return to work (even if it’s a brief leave of absence or an alternative leave of absence), and it acts as a strong repellent to EEOC-initiated conciliation and litigation.
- Consistently apply your “no-fault” leave policies. The employer won here because there was no evidence that it treated employees differently when it came to extended leaves of absence. In your own situation, are you granting one employee an extended leave of absence, but denying similar leave to another without any basis? If so, that’s a problem, and this kind of evidence likely would have influenced the court differently here.
- Me thinks the EEOC better issue some guidance in this area. Employers have been waiting years for reasonable guidance from the EEOC on leave as a reasonable accommodation. If we get more court decisions like this one, they will render whatever guidance the EEOC issues meaningless, as the EEOC’s take will have been trumped by far more meaningful (and better-reasoned) guidance from the courts.