The EEOC continues to ring the “inflexible leave policy” settlement register despite a 2014 opinion authored by then-10th Circuit Judge, now Associate Justice of the Supreme Court, Neil Gorsuch that such policies are neither inherently unlawful nor retaliatory, and can “serve to protect rather than threaten the rights of the disabled.” Hwang v. Kansas State University, (10th Cir. 2014).
The EEOC had claimed that UPS violated the ADA by failing to provide reasonable accommodations and by maintaining an “inflexible leave policy, whereby the company fired disabled employees automatically when they reached 12 months of leave, without engaging in the interactive process required by law,” according to the EEOC’s press release about the settlement.
In Hwang, the plaintiff had exhausted her employer’s six month leave policy, requested more leave and alleged that her employer’s denial of her request denied her a reasonable accommodation in violation of the Rehabilitation Act.
In the first sentence of the Hwang decision, Judge Gorsuch got right to the point: “Must an employer allow employees more than six months’ sick leave or face liability under the Rehabilitation Act?” Judge Gorsuch responded to his own question: “Unsurprisingly, the answer is almost always no.” He added that “perhaps [it] goes without saying that an employee who isn’t capable of working for [six months] 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…are all about enabling employees to work, not to not work.”
If a six month leave policy was not unlawful, one would expect a twelve month policy to garner at least twice the legal respect. However, Hwang does not appear to have had any impact on the EEOC’s position concerning inflexible leave policies or on defendants’ willingness to pay large sums to settle such cases.
As someone who posted his first (of many) blogs about inflexible leave policies more than seven years ago, and is looking forward to some finality about those policies, I suspect the issue will be on the Supreme Court docket eventually. Then we will find out just how many Supreme Court justices share Justice Gorsuch’s view.