How much leave must an employer provide its employees who are on disability leave? Six-months? Nine-months? An indefinite amount? Employers often consider this question in the context of the Americans with Disabilities Act and the Rehabilitation Act. Last week, the Tenth Circuit Court of Appeals weighed in on the issue in Hwang v. Kansas State University, No. 13-3070 (10th Cir. May 29, 2014).
In Hwang, the Court considered whether an employer must allow employees “more than six months’ sick leave or face liability under the Rehabilitation Act?” The answer, according to the Tenth Circuit, “is almost always no.” According to the Court, “[r]easonable accommodations . . . are all about enabling employees to work, not to not work.”
Grace Hwang was an assistant professor at K-State on a one-year contract to teach courses in the fall, spring, and summer semesters. Prior to the fall term, however, Hwang learned that she had cancer. The University granted Hwang’s request for six months of paid medical leave so that she could undergo cancer treatment.
Hwang remained on leave until prior to the spring semester, when her doctor recommended that she seek additional time off. Hwang requested that her leave be extended through the end of the spring semester and indicated that she would return to work in time for the summer term. The University refused, explaining that the maximum leave available under its policies was six months. Instead of granting additional leave, K-State prepared to transition Hwang to long-term disability, a move which Hwang characterized as effectively ending her employment. Hwang sued K-State under the Rehabilitation Act arguing, in part, that the University failed to provide a reasonable accommodation when it denied her request for additional leave.
The Rehabilitation Act prohibits recipients of federal funding from discriminating on the basis of disability. 29 U.S.C. § 794(a). As is the case under the ADAAA, in a failure to accommodate claim, a plaintiff must demonstrate that she was a qualified individual with a disability — meaning that she could perform the essential functions of her position with or without a reasonable accommodation, but that her employer refused to provide a reasonable accommodation. If an employer meets this burden, the employer may avoid liability by showing that the reasonable accommodation in question imposes an undue hardship.
The Court concluded that Hwang could not show that she was qualified to perform her teaching job with a reasonable accommodation — Hwang was not a qualified individual with a disability. While Hwang argued that additional leave was a reasonable accommodation that would permit her to perform the essential functions of her position, the Tenth Circuit rejected that argument. “It perhaps goes without saying that an employee who isn’t capable of working for so long [longer than six months] 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.”
K-State’s policy was distinguishable from the sort of inflexible policy which may be unlawful. As the Court explained: if an employer provides “unreasonably short sick leave periods” or an employee can show that other non-disabled employees are typically granted special dispensation from an otherwise inflexible policy, then a valid claim may arise. “But the leave policy here granted all employees a full six months’ leave—more than sufficient to comply with the [Rehabilitation] Act in nearly any case—and Ms. Hwang makes no allegations suggesting unequal enforcement of the policy’s terms.”