So last month we talked about how an employer may, in some circumstances, need to give additional leave as an accommodation above and beyond the Family and Medical Leave Act.  Today, my colleague Clarisse Thomas shows how the law in this area really is still developing.  She highlights a new case that comes to a different conclusion.  For employers, this uncertainty is definitely something to keep an eye on. 

Just last week, the Tenth Circuit Court of Appeals in Hwang v. Kansas State Univ.  held that an employer was not required to extend its 6-month leave policy as a reasonable accommodation to an employee.

In doing so, the Court also held that the employer’s “inflexible” leave policy did not violate the Rehabilitation Act. Similar to the Americans with Disabilities Act (“ADA”), the Rehabilitation Act also prohibits employers from discriminating on the basis of disability.

The employee in Hwang relied on EEOC Enforcement Guidance concerning the ADA to argue, albeit unsuccessfully, that her employer should have extended her leave as a reasonable accommodation after her leave period expired.

That Guidance provides that an employer must modify its “no-fault” or “inflexible” leave policy to provide an employee with additional unpaid leave as a reasonable accommodation, unless the employer 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.

Rather than extend its leave policy, the employer in Hwang arranged for the employee to receive long-term disability benefits after her leave period expired — an act which the employee complained constituted termination of her employment, and thus a violation of the law.

The Court, however, was not persuaded. It explained that the purpose of a reasonable accommodation is to “permit otherwise qualified disabled persons to work — not to turn employers into safety net providers for those who cannot work.” As such, the Court interpreted the EEOC Guidance to mean that only after it is determined that modification of a leave policy is a reasonable accommodation necessary to enable an employee to perform the essential functions of his/her job, is modification then required.

The problem in Hwang was that the employee admitted she could not perform any essential job junctions, even with a reasonable accommodation. Thus, the employer did not have to modify its “inflexible” leave policy by granting her extended leave.

Herein lies the rub. Although employers are not required to hold a job open indefinitely, simply because an employee’s leave has expired before s/he is able to return to work does not automatically mean that s/he is no longer qualified to perform the essential functions of the job.

While the case is from a different jurisdiction, the lessons learned from that case can be applied to other employers as well.  So, what should Connecticut employers consider to avoid challenges to their “inflexible” leave policies (besides, of course, consulting with their preferred local counsel)?

Here are a few general tips:

  • Don’t just rely on the terms of your leave policy when making employment decisions. Instead, engage in an interactive process with the employee to determine whether s/he can perform the essential functions of the job with a reasonable accommodation, such as a short extension of leave.
  • If modification of a leave policy is not a reasonable accommodation, the employer’s inquiry should not end there, as other reasonable accommodations may be available, such as allowing the employee to work from home for a brief period before returning to the office full time.
  • “No-fault” leave policies should be consistently and uniformly enforced. Requests for extensions of such leave policies should not be granted for some employees but denied as to others.

If your policy hasn’t been reviewed in the last 5-10 years, consider taking another look at it. The law in this area has been shifting subtly.