inflexible leave policies

So many companies have landed themselves in legal trouble over “inflexible leave policies” — those requiring workers to return to work after a certain amount of leave — that many firms are hesitant to enforce such a policy any longer. But a recent appeals court ruling could mean companies have more leeway in this area than they thought.   

The case is Hwang v. Kansas State University, and it hinged on the idea that all inflexible leave policies are inherently discriminatory.

Needed more than 6 months

Some background on this case: Kansas State had granted Hwang six months of leave. After she exhausted that leave time, Hwang requested additional leave.

Kansas State rejected Hwang’s request, citing its company policy which capped employees’ leave at six months, and she sued under the Rehabilitation Act — a law that covers government workers with disabilities.

It’s very similar to the Americans with Disabilities Act (ADA), and it prohibits the discrimination on the basis of an individual’s disability.

In Hwang’s lawsuit, she cited EEOC guidance and argued that Kansas State’s inflexible leave policy was inherently discriminatory. She also claimed Kansas State was required to provide her with additional leave as a reasonable accommodation.

A timeline for employers?

The court not only ruled in favor of the employer, it also offered a succinct explanation on why Hwang’s request wasn’t feasible.

The court commented on Hwang’s request for additional leave, saying it:

perhaps goes without saying that an employee who isn’t capable of working for [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. 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.

That statement is significant in and of itself because the court is essentially shooting down the argument that additional leave is a reasonable accommodation in most situations — a stance many employers feared courts were leaning toward.

Even more significant, however, is what the court said regarding the company’s six month leave policy and its ability to terminate workers who can’t return to work after their leave time is over.

According to the court, it’s:

difficult to conceive how an employee’s absence for six months … could be consistent with discharging [i.e., performing] the essential function of most any job in the national economy today.

With that statement, the court seems to be spelling out a timeline employers can use to deny additional leave, claiming more than six months of leave presents an undue hardship to business. In the past, courts have ruled that additional leave must be considered as a reasonable accommodation, but intentionally avoided mentioning specific time periods.

In fact, the closest we’ve seen is a ruling that touched on additional leave being unreasonable is a case where a court dismissed the idea that “indefinite” leave could be considered an accommodation under the ADA.

Here the court seems to be saying that keeping an employee’s position open for longer than six months would almost always present an undue hardship on the company.

Policy can ‘protect rather than threaten’

The court also offered some interesting commentary on how inflexible leave policies impact workers with disabilities.

As the court put it, these policies:

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.

Although this decision’s certainly welcome news for employers, it’s important to remember that it’s just one appeals court — other federal circuits could certainly have ruled differently. Still, if your company ever finds itself in a similar legal snarl, it’s good to know that there is existing case law that argues in your favor.

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