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.