A Capehart Scatchard Blog

Tenth Circuit Court of Appeals Finds Leave in Excess of Six Months Is not a Reasonable Accommodation

By on September 23, 2014 in ADA with 0 Comments

Grace Hwang worked as an assistant Professor at Kansas State University.  Before the fall term began, she found out she had cancer and needed treatment.  She requested a six month leave of absence, which Kansas State granted.  As the spring term approached, Hwang’s doctor indicated that she would need additional leave time.  She requested another extension through the end of spring and projected that she would be able to teach by summer term.  The University refused, stating that its policy had a six-month limit on disability-related leaves of absence.

Hwang brought suit under the Rehabilitation Act of 1973, which is interpreted in the same manner as the ADA.  The Court said the following:

It perhaps goes without saying that an employee who isn’t capable of working for so long 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.  After all, reasonable accommodations — typically things like adding ramps or allowing more flexible working hours — are all about enabling employees to work, not to not work.

The Court approved the practice of employers in granting leaves of absence as a reasonable accommodation, but it cautioned:

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 form an employer might qualify as a reasonable accommodation.

Hwang argued that any inflexible leave policy which has a set period of time violates the law.  She relied on language from the EEOC guidance manual.  She argued that an employer must always modify a leave policy unless one of two enumerated conditions is met — unless an alternative accommodation would be effective or the requested leave modification would constitute  undue hardship.  The Court disagreed:  “In the first place, the EEOC manual commands our deference only to the extent its reasoning actually proves persuasive.”  The Court found other language in the EEOC Manual which seemed to endorse a six month period as reasonable.  It did acknowledge that if the inflexible leave policy is really a sham, and some people are granted more than six months, then there would be merit to a discrimination claim.  In this case, Hwang was not able to prove that the university’s six-month leave policy was not uniformly enforced.

This case can be found at Hwang v. Kansas State University, 753 F.3d 1159 (10th Cir. 2014).  Readers should bear in mind that this is just one Circuit Court of Appeals decision, and employers should consult with counsel on the case law in their own Circuit before making a decision to enforce an inflexible leave policy.



About the Author

About the Author:

John H. Geaney, a shareholder and co-chair of Capehart Scatchard's Workers' Compensation department, began an email newsletter entitled Currents in Workers’ Compensation, ADA and FMLA in 2001 in order to keep clients and readers informed on leading developments in these three areas of law. Since that time he has written over 500 newsletter updates.

Mr. Geaney is the author of Geaney’s New Jersey Workers’ Compensation Manual for Practitioners, Adjusters & Employers. The manual is distributed by the New Jersey Institute for Continuing Legal Education (NJICLE). He also authored an ADA and FMLA manual as distributed by NJICLE. If you are interested in purchasing the manual, please contact NJICLE at 732-214-8500 or visit their website at www.njicle.com.

Mr. Geaney represents employers in the defense of workers’ compensation, ADA and FMLA matters. He is a Fellow of the College of Workers’ Compensation Lawyers of the American Bar Association and is certified by the Supreme Court of New Jersey as a workers’ compensation law attorney. He is one of two firm representatives to the National Workers’ Compensation Defense Network. He has served on the Executive Committee of Capehart Scatchard for over ten (10) years.

A graduate of Holy Cross College summa cum laude, Mr. Geaney obtained his law degree from Boston College Law School. He has been named a “Super Lawyer” by his peers and Law and Politics. He serves as Vice President of the Friends of MEND, the fundraising arm of a local charitable organization devoted to promoting affordable housing.

Capehart Scatchard is a full service law firm with offices in Mt. Laurel and Trenton, New Jersey. The firm represents employers and businesses in a wide variety of areas, including workers’ compensation, civil litigation, labor, environmental, business, estates and governmental affairs.


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