Labor & Employment Law I JUNE 30, 2014

Extended Leave of Absence is Not a Reasonable Accommodation

Grace Hwang was an assistant professor at Kansas State University. She signed a written one-year contract to teach classes over three academic terms. Before the fall term began, though, Hwang learned that she had cancer. The University gave her a six-month paid leave of absence. Hwang’s doctor advised her to seek more time off. She asked the University to extend her leave, promising to return for the summer term. The University refused, explaining that it had a policy which allowed no more than six months’ sick leave. The district court dismissed her complaint under the Rehabilitation Act. Hwang appealed.

The court of appeals noted that a plaintiff can establish a claim for discrimination by showing that she is qualified for her job, that she can perform the job’s essential functions with a reasonable accommodation for her disability, and that her employer failed to provide a reasonable accommodation

Hwang was clearly disabled, but she wasn’t able to perform the essential functions of her job even with a reasonable accommodation. She couldn’t work in any manner for more than six months. The court said that an employee who isn’t capable of working for so long isn’t an employee capable of performing a job’s essential functions. Accordingly, requiring an employer to keep a job open for so long doesn’t qualify as a reasonable accommodation, because reasonable accommodations are all about enabling employees to work, not to not work.

The court found it 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. Even if it were, it was hard to see when requiring so much latitude from an employer might qualify as a reasonable accommodation.

The Rehabilitation Act seeks to prevent employers from denying reasonable accommodations that permit otherwise qualified disabled persons to work—not to turn employers into safety net providers for employees who cannot work.

Hwang maintained that all “inflexible” sick leave policies, necessarily violate the Rehabilitation Act. The appeals court disagreed.

There is nothing inherently discriminatory in the fact that the policy is “inflexible.” At least in 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.

The court noted that flexible leave policies are not categorically immune to attack. Policies providing unreasonably short sick leave periods may not provide accommodation enough for employees who are capable of performing their jobs’ essential functions with just a little more forgiven absence. Likewise, if an employer’s supposedly inflexible sick leave policy is really a sham and other employees are routinely granted leave that disabled employees are not, an inference of discrimination may arise.

Here, the leave policy here granted all employees a full six months’ sick leave—more than sufficient to comply with the Act in nearly any case.

Hwang v. Kansas State University, ___ F.3d ___, 2014 WL 2212071(10th Cir. 2014).