Is A Leave of Absence Longer Than Six Months Required As A Reasonable Accommodation?

According to the U.S. Court of Appeals for the Tenth Circuit, the answer to whether a leave of absence longer than six months is required as a reasonable accommodation is “almost always no.”

In Hwang v. Kansas State University, the Tenth Circuit addressed the question of whether an employer violated the Rehabilitation Act by denying an employee’s request for a leave of absence extending beyond six months. The Rehabilitation Act applies to employers who receive federal funding. Like the Americans with Disabilities Act (ADA), it prohibits disability discrimination and requires employers to provide reasonable accommodations to disabled employees, absent undue hardship. Because claims asserted under the Rehabilitation Act are subject to the same analysis as claims under the ADA, the court’s analysis in Hwang is relevant to the majority of employers.

The Hwang court held that a leave of absence of longer than six months is almost never a reasonable accommodation because it typically means that the employee cannot perform the essential functions of his or her job. The court explained its holding by stating that:

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.

In reaching this conclusion, the Hwang court rejected the argument that any inflexible leave policy – for example, a policy that never provides more than six months of leave – is a per se violation of the Rehabilitation Act or the ADA. The court explained that an employer only needs to modify a leave policy to provide a reasonable accommodation and that a leave of absence longer than six months would seldom, if ever, be reasonable. However, the court cautioned that inflexible leave policies that only authorize a short period of leave may still be subject to attack.

Takeaway: The Hwang decision helps provide some clarity for employers struggling with the often difficult question of how long is too long for a leave of absence to accommodate a disabled employee. Although individual consideration is still required whenever an employee requests an accommodation, the six-month rule endorsed by the Hwang court is a helpful rule of thumb for employers.

About Michael Miller

Michael is a Chambers-rated attorney in Briggs and Morgan's Employment, Benefits, and Labor group and is head of the firm’s Employment Law Counseling and Compliance practice group. He has 25 years experience counseling employers to prevent unwanted litigation and advises companies of ongoing changes in federal, state and local employment law. Michael advises employers in all areas of employment law including discipline and discharge, leaves of absence, wage and hour compliance, non-compete and confidentiality agreements, affirmative action plans, background checking, and drug/alcohol testing. For Michael's full bio, click here.

Posted on June 24, 2014, in Accommodations and Accessibility, Leaves of Absence and tagged . Bookmark the permalink. Leave a comment.

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