10th Circuit Finds Employer’s Application Of Inflexible Leave Policy Did Not Violate Rehabilitation Act

On May 29, 2014, in Hwang v. Kansas State University, the U.S. Court of Appeals for the Tenth Circuit issued a decision in favor of the defendant, Kansas State University (KSU), that includes a holding that KSU did not violate the Rehabilitation Act by denying the plaintiff, a former KSU professor, more than six months of leave.  Similar to the Americans With Disabilities Act (ADA), one of the ways a disabled plaintiff can establish a discrimination claim under the Rehabilitation Act, which prohibits recipients of federal funding from discriminating on the basis of disability, is by showing: (1) she is qualified for her job; (2) she can perform the job’s essential functions with a reasonable accommodation for her disability; and (3) her employer failed to provide a reasonable accommodation despite her request for one.

In Hwang, the plaintiff sought and received a six month paid leave of absence before the fall semester related to her need for cancer treatment.  Prior to the end of the six months of leave, the plaintiff asked for additional months of leave through the end of the spring semester.  However, KSU refused the request and explained it had an inflexible policy allowing no more than six months of sick leave.  The Court found that plaintiff could not establish a Rehabilitation Act discrimination claim under these circumstances because plaintiff “wasn’t able to perform the essential functions of her job even with a reasonable accommodation.”  The Court indicated that it perhaps goes without saying that an employee who isn’t capable of working for over six months is not 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.”

The Equal Employment Opportunity Commission (EEOC) has taken the position that additional leave – even above and beyond the leave an individual is entitled to under the FMLA or under employer leave polices of a specific duration – may be a reasonable accommodation under the ADA depending on the circumstances.  Thus, decisions such as Hwang are potentially significant to the extent that, in light of the EEOC’s employee friendly approach to leave as an accommodation, companies are looking for more guidance from the courts as to the maximum amount of leave that needs to be provided to a disabled employee to stay in compliance with the Rehabilitation Act or the ADA.  In fact, the opinion in Hwang opens with the following language: “Must an employer allow employees more than six months’ leave or face liability under the Rehabilitation Act?  Unsurprisingly, the answer is almost always no.”  This type of language has potential persuasive authority for purposes of an argument that employers should not be required to provide more than six months of leave as an accommodation under the ADA or Rehabilitation Act.  However, it is important to note that not all federal circuits may take such a bright line approach to leave as an accommodation under the ADA and Rehabilitation Act.  Among other things, employers should continue to engage in the interactive accommodation process with disabled employees.

McMahon Berger has over 50 years of experience dealing with ADA issues and other employment related matters.  If you would like more information, please do not hesitate to contact us.