Six Months of Absence Inconsistent

With Performing Essential Job Functions


Federal Appeals Court

Talks Sense About Leaves


EEOC Guidance on “Inflexible Policy”

Adds Nothing to the Conversation


            In Hwang v. Kansas State Univ., __F3rd__, 2014 WL 2212071 (10th Cir. 2014),  a professor who had taken ill took a six-month leave of absence.  When it ended her doctor advised her to get more time off.  The university turned her down since the six-month sick leave policy did not allow for extensions under any circumstances.  Hwang sued, alleging disability discrimination.


            The Tenth Circuit Court of Appeals upheld a dismissal of her complaint.  “It 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.”   The court recognized that shorter absences do not disqualify an employee from an accommodation, but drew the line at six months.


            The Equal Employment Opportunity Commission’s Enforcement Guidance opines that employers break the law when enforcing inflexible leave policies, since they compromise the interactive process an employer must have with the employee still on leave.  But, the court ruled in refusing to defer to the EEOC guidelines, “there is no need to have a dialogue about a leave of more than six months when a leave of that period of time is unreasonable as a matter of law.”


            In light of this case employers should consider implementing six-month maximum leave policies, with this caveat:  it is conceivable that a prized employee might deserve an extension past six months, and allowing an exception for her could create an inconsistency that would risk a disparate treatment claim under the ADA.  How strong such a claim would be would depend on the nature of the respective employees’ disabilities.  There probably would be no disparate treatment if one disabled person is treated worse than another.