Tuesday, June 10, 2014

ADA Update: 10th Circuit Says a Leave of Absence of More Than Six Months Is Virtually Never a Required Accommodation

“[R]easonable accommodations…are all about enabling employees to work, not to not work.”*  This fundamental insight guides the recent decision by the U.S. Court of Appeals for the Tenth Circuit, holding that a six-month, inflexible leave policy is virtually always “more than sufficient” to comply with the Rehabilitation Act, and by implication, the Americans with Disabilities Act (ADA).**  The court provided employers with refreshingly clear guidance on how to best structure leave policies to avoid exposure for disability discrimination claims. ...

Essentially, the court's logic boils down to this: step one is to determine whether the length of the leave request is reasonable. If it is not, proceed no further. If it is reasonable, then engage in a dialogue about whether other options are available, or whether other options might shorten the needed leave of absence. To support this analysis, the court cited to a later provision in the [EEOC's] Enforcement Guidance, which states 'six months is beyond a reasonable amount of time' to retain an employee in the hopes that a job which she or he can perform will become available.  
The court further justified this holding by recognizing that firm policies ensure clarity and consistent treatment and, therefore, they are more desirable. Policies which permit more discretion allow discriminatory motives to be disguised. The court analogized its reasoning to the Supreme Court’s rejection of the notion that inflexible seniority policies discriminate against the disabled. ... 
  *    Hwang v. Kansas State Univ., No. 12-3070, 2014 WL 2212071, *1 (10th Cir. May 29, 2014).
  **  Id.  

Case citation: Hwang v. Kansas State Univ., No. 13-3070 (10th Cir. May 29, 2014)