I had this long elaborate post written about Hwang v. Kansas State University (5/29/14) [pdf], in which the 10th Circuit court of appeals held an employer did not have to offer a leave of absence greater than six months to accommodate an employee’s disability, and that an employer can have an inflexible leave of absence policy that places a hard cap on an employee’s medical leave of absence.
Grace Hwang, an assistant professor at Kansas State University, signed a written one-year teaching contract. Before the start of fall term, Ms. Hwang was diagnosed with cancer. She sought, and the University granted her, a six-month (paid) leave of absence for treatment. Near the end of her leave, Ms. Hwang’s doctor advised her to seek more time off. She asked the University to extend her leave through the end of spring semester, promising to return in time for the summer semester. The University, however, refused, citing an inflexible policy allowing no more than six months’ time off. In response, she sued, claiming that by denying her more than six months’ leave the University violated the Rehabilitation Act.
The 10th Circuit held that Hwang’s need for an extended leave of absence disqualified her from the protections of the disability discrimination laws:
Still, 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. Ms. Hwang’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.…
Neither is there anything inherently discriminatory in the fact the University’s six-month leave policy is “inflexible,” as Ms. Hwang would have us hold. To the contrary, in at least 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, as can happen in a leave system with fewer rules, more discretion, and less transparency.My post would have provided you insightful analysis of Hwang, discussing how this case in an outlier. That employers should still think long and hard (and only after engaging in the interactive process) before denying an extended unpaid leave of absence under the ADA. And that employer’s are most safely served by having a flexible leave of absence policy instead of a hard-capped one.
But, three of my favorite employment law bloggers beat me to the punch with their own thoughts.
- Are Inflexible Leave Policies Lawful After All? One Court Leaves Employers Salivating — from Jeff Nowak’s FMLA Insights
- Just how badly did a federal appellate court trash extended leave as a reasonable accommodation? — from Eric Meyer’s Employer Handbook Blog
- Wait, “Inflexible” Leave Policies Are Actually Okay? Sometimes. — from Dan Schwartz’s Connecticut Employment Law Blog
Jeff went so far as to Twitter-challenge me to pick the best of the three posts.
@danielschwartz @Eric_B_Meyer, we all were thinking the same blog post this weekend. Should we have @jonhyman vote on which 1 is best? :)
— Jeff Nowak (@jeffreysnowak) June 3, 2014
Haven’t I already done enough?