On June 30, 2014, the Equal Employment Opportunity Commission touted its recent agreement with Princeton HealthCare System to settle litigation challenging PCHS’s “inflexible” leave of absence policy under the Americans with Disabilities Act.
According to the press release published by the EEOC, PHCS maintained a fixed leave policy whereby employees were terminated if they were unable to return to work at the end of FMLA-covered leaves of absence, or after a shorter period if ineligible for Family and Medical Leave Act-related leave. This blanket policy, the EEOC asserts, violates the ADA because it fails to consider leave as a reasonable accommodation. To settle the case, PCHS will pay $1,350,000 and eliminate its inflexible leave policy. The EEOC press release also celebrates of “significant resolutions of EEOC cases involving leave and attendance policies, including its settlements with Interstate Distributor, Supervalu, Sears and Verizon.
Despite the EEOC’s clear position vis-à-vis inflexible leave policies, not all courts agree. Recently, the United States Court of Appeals for the Tenth Circuit, in Hwang v. Kansas State University, held that a leave of absence of more than six months was not a reasonable accommodation under the Rehabilitation Act (the Rehabilitation Act prohibits disability discrimination by entities receiving federal funds; it is analyzed under the same framework applicable to claims under the ADA).
Under both the Rehabilitation Act and the ADA, a plaintiff can prove his case by showing that he is a qualified individual with a disability, can perform the essential functions of the job with or without reasonable accommodation, and is denied a reasonable and requested accommodation. Applying logic to the facts of the case, the Court found that the Hwang plaintiff was not able to perform the essential functions of her job even with a reasonable accommodation. As the Court stated,
By her own admission, [the plaintiff] couldn’t work at any point or in any manner for a period spanning more than six months. 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.
If other courts follow this lead, as I suspect some will, this issue is far from resolved. In the meantime, employers should continue to engage in the interactive process, and evaluate requests for accommodation on a case-by-case basis.