Return of the Inflexible Leave Policies

Inflexible leave policies—that is policies which provide a specified time off for personal reasons, including medical reasons—have been declared unlawful by the EEOC.  The EEOC’s position is that inflexible leave policies do not provide the individualized consideration necessary to determine whether leave longer than the specified time is a reasonable accommodation.  Accordingly, many companies have revised their leave policies.

However, a 10th Circuit case shows that the rush to revision may have been premature.  The opening statement in Hwang v. Kansas State University declares, “Must an employer allow more than six months’ sick leave or face liability under the Rehabilitation Act?  Unsurprisingly, the answer is almost always no.”  Well, that is an attention-getting line in the world of employment these days.  Let’s examine the path to such conclusion:

Hwang was a good teacher that got cancer and needed treatment.  The cancer and its treatment required her to take a leave of absence.  The University granted her a six-month paid leave of absence.  When she requested additional time, the University denied her requesting explaining that it had an inflexible policy allowing no more than six-months’ sick leave.

Hwang, according to the opinion, was not able to perform her job even with a reasonable accommodation.  Hwang could not perform any function of her job for a lengthy period of time and requiring an employer to hold a position open for such a long period of time was not a reasonable accommodation.  In a profound statement, the court reasoned that reasonable accommodations were about enabling employees to work, not to not work.  An employer is not a “safety net” for the employee.

The court also explained why it did not find the EEOC’s position persuasive.  In what amounts to construction of the language used in the EEOC’s statement, the court found that the EEOC’s position does not answer the question “when is a modification to a leave policy legally necessary to provide a reasonable accommodation?”  The answer is not “every time” as Hwang (and the EEOC) argue.

Lastly, the court reasoned that inflexible leave policies may actually protect disabled employees rather than threaten them.  Such inflexible policies have a tendency to create and fulfill expectations of fair, uniform treatment and limit unfairness in personnel decisions.

To be certain, the court did not give its blessing on any and all inflexible leave policies, but a six-month leave policy was “more than sufficient to comply … in nearly any case.”  While this case is not an Iowa case or from the 8th Circuit, it is good to see a decision that provides an employer with useful tools rather than vague uncertainties. 

Telecommuting as a Reasonable Accommodation

The 6th Circuit’s telecommuting decision in EEOC v. Ford Motor Co. has been creating a buzz in the employment law community.  Since the concept of telecommuting as a reasonable accommodation is not necessarily innovative, the buzz must be coming from the way in which the court appeared to bend over backwards to declare that telecommuting could have been a reasonable accommodation in this specific instance.  Rather than offer my own critique of the case, check out this blog and this one here or maybe this one if you haven’t got enough yet.  Instead, let’s see what the 8th Circuit and Iowa courts have said about telecommuting.

 [chirp. chirp.]

It’s true, my cursory search of “telecommute” and “reasonable accommodation” in Iowa and the 8th Circuit through my online legal research provider yielded one unpublished one page opinion on telecommuting from 2002.  In Morrissey v. General Mills, Inc, the court found that allowing Morrissey to telecommute would have placed an undue burden on General Mills.  Morrissey’s job as an inventory accountant required her to review only original invoices.  The invoices would have had to be delivered by a courier, which would have possibly led to the disclosure of proprietary information.  The invoices would also have had to be logged out and back in, creating additional work for the other inventory accountant.  According to the court, employers are not required to hire additional personnel, risk disclosure of confidential documents, or increase the workload of other personnel to accommodate a disabled employee.  Telecommuting was not a reasonable accommodation based on the facts presented.

The decision is clearly not a blanket opposition to telecommuting.  These facts simply weren't the right facts to support telecommuting.  As telecommuting becomes more acceptable, requests to telecommute by employees with disabilities will increase.  Be prepared for these requests. Examine your job descriptions and your current telecommuting policies.  Do they need to be revised or updated?  Have you adequately set out the need for an employee's presence in the workplace?  Do you know what technology or workplace changes would need to be made if a request to telecommute was made?   Be proactive, not reactive because it's only a matter of time before a telecommuting request is made by one of your employees.


Is a Nut Allergy a Disability?


In a ruling issued today, the Iowa Court of Appeals ("Court") sent a case back to the District Court for determination on whether a tree nut allergy fits the description of a "disability" under the Iowa Civil Rights Act.  The Court examined the similarities between the Iowa and Federal Americans with Disabilities Act ("ADA").  The Court reasoned that the Iowa Act has always closely followed the Federal ADA, and since the Federal ADA has recently broadened its definitions of the term "disability," the District Court should further examine whether a nut allergy fits within this expanded definition.

Photo on Flickr by uacescomm