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It’s all about enabling employees to work: Refusing to extend six-month maximum leave policy is not a failure to accommodate

May 29th, 2014  |  Joy Waltemath

By Joy P. Waltemath, J.D.

The Tenth Circuit ruled today that by refusing to extend its “inflexible” six-month maximum sick leave policy to an assistant professor under a one-year contract who had already been granted six months of paid leave, a university did not violate the Rehab Act. Unquestionably the teacher was capable, qualified, and disabled within the meaning of the Act – she had been diagnosed with cancer and was undergoing treatment, and her physician said she required additional time off – but unquestionably she wasn’t able to perform the essential functions of her job. Requiring an employer to keep a job open for so long doesn’t qualify as a reasonable accommodation, said the court, pointing out that reasonable accommodations “are all about enabling employees to work, not to not work” (Hwang v Kansas State University). What are the takeaways for employers?

1. Extending leave must make it possible to perform essential functions. Here you have a sympathetic plaintiff unquestionably “suffering a wretched year.” At the same time, the university arranged for long-term disability benefits, but the teacher believed that it had effectively terminated her employment and sued. Obviously an employee who needs a brief absence from work for medical care may still be able to perform the essential functions of the job, and allowing brief absences may be a legally required reasonable accommodation if those absences make it possible for an employee to perform essential job duties. So what’s the difference between leave that makes it possible for an employee to perform her essential job functions, and leave that makes it impossible to perform those duties – and accordingly isn’t a reasonable accommodation?

2. Employers are “not safety net providers.” The court cited the nature of the job itself, the nature and length of the leave, and the impact on fellow employees as criteria to determine whether an extended leave is reasonable. However, it went on to question 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 performing the essential functions of almost any job. Even if it were, the court was unconvinced that “requiring so much latitude from an employer” would qualify as a reasonable accommodation. “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.”

3. Any accommodation must be reasonable and enable employee to perform essential functions. Unwilling to buy the teacher’s argument that the university’s inflexible maximum sick-leave policy necessarily violated the Rehab Act, the court took apart her argument. She cited the EEOC Enforcement Guidance Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, which says:

If an employee with a disability needs additional unpaid leave as a reasonable accommodation, the employer must modify its “no-fault” leave policy to provide the employee with the additional leave, unless it can show that: (1) there is another effective accommodation that would enable the person to perform the essential functions of his/her position, or (2) granting additional leave would cause an undue hardship.

To the court, the language of the first sentence, on which the teacher relied, clearly indicated that the two numbered conditions would come into play only after it was clear the leave policy modification was a reasonable accommodation necessary to ensure the employee could perform his essential job functions. Plus, it went on to note that in the same agency guidance, the EEOC expressly stated 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, “because six months is beyond a reasonable amount of time.”

4. If long enough, inflexible leave policy can be a good thing. There was nothing inherently discriminatory in the fact the university’s six-month leave policy was “inflexible”; in fact, such a policy can protect rather than impair the rights of employees with disabilities — by ensuring their 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,” reasoned the court. But it was mindful that inflexible leave policies are not categorically without fault, either. “Policies providing unreasonably short sick leave periods, for example, may not provide accommodation enough for employees who are capable of performing their jobs’ essential functions with just a little more forgiven absence.”

Here, the leave policy here granted all employees a full six months’ sick leave — more than sufficient in nearly any case — and all the employee alleged along the lines of unequal enforcement was the fact that some employees were eligible for sabbaticals. But she alleged no facts suggesting that sabbatical-eligible employees included untenured faculty on year-to-year contracts with seniority similar to her own. This wasn’t enough to raise an inference of discrimination to counterattack the leave policy, concluded the court.