Lawsuits involving inflexible leave policies always get my attention. I have been speaking and writing about such policies for decades. Last year, the EEOC sued Pilgrim’s Pride, alleging that it had violated the ADA by not modifying its attendance and leave policies to accommodate an employee with a disability. Earlier this month, the case was settled for $50,000 and other non-monetary relief.
In its press release about the settlement, an EEOC official stated that “Nearly 30 years after the enactment of the ADA, some employers are still enforcing inflexible attendance policies… This lawsuit is a reminder to employers they have an obligation to make exceptions to attendance policies and provide leave as a form of reasonable accommodation unless doing so would result in undue hardship.”
Underlying the EEOC’s inflexible leave position is the oxymoronic anomaly that an individual who cannot come to work is nonetheless a qualified individual with a disability, defined as one who can perform the essential functions of the position either with or without an accommodation.
Concerning the oxymoronic anomaly, the Seventh Circuit observed that “an employees who needs long-term medical leave cannot work and thus is not a ‘qualified individual’ under the ADA.” (italics in original). “[A] long-term leave of absence cannot be a reasonable accommodation….'[N]ot working is not a means to perform the job’s essential functions,” the court added. Last year, the Supreme Court declined to review the decision.
If the Supreme Court were to hear an inflexible leave policy case, one justice is already familiar with the issue. In 2014, then-Tenth Circuit Judge, now Associate Justice of the Supreme Court Neil Gorsuch, rejected the argument that the employer’s six-month maximum leave policy violated the Rehabilitation Act, an ADA analog. Hwang v. Kansas State University, (10th Cir. 2014). In the first two sentences of that opinion, Judge Gorsuch asked and answered the seminal question: “Must an employer allow employees more than six months’ sick leave or face liability under the Rehabilitation Act? Unsurprisingly, the answer is almost always no.” He explained that inflexible leave policies “serve to protect rather than threaten the rights of the disabled — by ensuring disabled employees’ leave requests aren’t secretly singled out for discriminatory treatment, as can happen in a leave system with fewer rules, more discretion, and less transparency.”
Until the Supreme Court resolves the issue, I suspect more “inflexible leave” lawsuits will be filed other than within the Seventh and Tenth Circuits. The Pilgrim’s Pride case was brought in the Northern District of Alabama.