College Didn't Violate Rehabilitation Act By Denying Medical Leave Beyond Six Months

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By Kevin P. McGowan  

May 30 — Kansas State University didn't violate the Rehabilitation Act by denying a faculty member's request to extend her leave for cancer treatment after the school already had granted her the maximum six months of paid medical leave, the U.S. Court of Appeals for the Tenth Circuit ruled May 29.

Affirming dismissal of the suit, the court said Grace Hwang, who sued after the university declined to grant her additional leave after she exhausted the maximum paid medical leave, can't show she was qualified to perform her teaching job with reasonable accommodation.

Instead, the Tenth Circuit said—on an issue that also has Americans with Disabilities Act implications—an employee request for an extended unpaid leave after exhausting maximum paid leave generally wouldn't be a reasonable accommodation an employer must grant.

“By [Hwang's] own admission, she couldn't work at any point or in any manner for a period spanning more than six months,” Judge Neil M. Gorsuch wrote. “It perhaps 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.”

“After all, reasonable accommodation—typically things like adding ramps or allowing more flexible working hours—are all about enabling employees to work, not to not work,” the court said.

EEOC Guidance No Help, Court Says

The Equal Employment Opportunity Commission recently has focused on leave as a reasonable accommodation under the ADA, holding a June 2011 public meeting and pondering possible guidance on the issue.

The EEOC also has sued employers under the ADA for adhering to inflexible leave policies in which employees who are unable immediately to return to work after exhausting available leave are terminated.

Hwang cited the EEOC's Enforcement Guidance on Reasonable Accommodation and Undue Hardship, last revised in 2002, to support her Rehabilitation Act claim.

But the Tenth Circuit said the cited passage in the EEOC guidance doesn't answer “the antecedent question we face in this case: When is a modification to an inflexible leave policy legally necessary to provide a reasonable accommodation?”

If anything, the EEOC guidance in another passage appears to support the university's position an employer doesn't have to retain an employee who can't perform her job for at least six months just because another job she can perform will open up then, the court said.

“Here then the EEOC seems to agree with our conclusion that holding onto a non-performing employee for six months just isn't something the Rehabilitation Act ordinarily requires,” the court said.

Plaintiff to Seek En Banc Review

Hwang will request review by the full Tenth Circuit, said attorney Luanne Leeds of Topeka, Kan., who represents Hwang.

Although it was reviewing a Rule 12(b)(6) dismissal, the court improperly based its decision on facts not included in or contrary to Hwang's complaint, Leeds told Bloomberg BNA May 30.

“After all, reasonable accommodation—typically things like adding ramps or allowing more flexible working hours—are all about enabling employees to work, not to not work,” Judge Gorsuch wrote.

Hwang was a 13-year university employee forced to accept long-term disability rather than keep her job with benefits even though she provided a date certain for her return from the proposed leave, Leeds said.

The ruling that Hwang's leave request was not reasonable conflicts with both the ADA Amendments Act of 2008 and the EEOC guidance saying employers can't maintain inflexible leave policies offering no chance for limited additional leave for employees with disabilities, Leeds said.

Meanwhile, the university May 30 applauded the court's decision. “There was no substance to these claims against the university, and the court recognized that,” said Peter Paukstelis, the associate general counsel at Kansas State.

Alleged Lack of Reasonable Accommodation

Hwang, a non-tenured assistant professor, had a one-year contract to teach in the fall, spring and summer terms when she learned she had cancer and needed treatment, the court recounted. Prior to the fall term, Hwang sought a six-month paid medical leave, which the university granted.

As the spring term approached, Hwang's physician advised her to seek more time off. She asked to extend her leave through the end of the spring semester. But according to Hwang, the university refused, explaining it had an inflexible policy allowing no more than six months' sick leave.

The university arranged for Hwang to receive long-term disability benefits, but she said the school effectively terminated her employment.

Hwang sued under the Rehabilitation Act, which courts analyze the same as the ADA. She contended the university denied her reasonable accommodation by not granting her extended leave and instead terminating her. The U.S. District Court for the District of Kansas granted the university's motion to dismiss.

Act Not Intended as ‘Safety Net.'

On appeal, the Tenth Circuit affirmed Hwang wasn't a qualified individual with a disability, as she couldn't perform her job's essential functions with a reasonable accommodation.

Hwang argued additional leave was a reasonable accommodation, but the court said nothing in the Rehabilitation Act compels such a conclusion.

“[I]t's difficult to conceive how an employee's absence for six months—an absence in which she could not work from home, part-time, or in any way contribute in any place—could be consistent with discharging the essential functions of almost any job in the national economy today,” Gorsuch wrote. “Even if it were, it is difficult to conceive when requiring so much latitude from an employer might qualify as a reasonable accommodation.”

Hwang's inability to work because of cancer was “a terrible problem, one in no way of her own making” but “it's a problem other forms of social security aim to address,” the court said.

“The Rehabilitation Act seeks to prevent employers from callously denying reasonable accommodations that permit otherwise qualified disabled persons to work—not to turn employers into safety net providers for those who cannot work,” the court said.

Parsing the EEOC Guidance

Hwang argued the Tenth Circuit must reinstate her suit because all “inflexible” sick leave policies, even those that provide six months' paid leave, necessarily violate the Rehabilitation Act.

Hwang cited a passage in the 2002 EEOC enforcement guidance that states if an employee with a disability needs additional unpaid leave as a reasonable accommodation, then an employer “must modify its ‘no-fault' leave policy” to provide such additional leave unless the employer can show an alternate effective accommodation would allow the employee to perform the job or that providing additional leave would cause undue hardship.

But the court said it must follow EEOC guidance only to the extent the agency's reasoning is persuasive and “the sentence Ms. Hwang cites doesn't seek to persuade us of much.”

Hwang apparently interprets the EEOC guidance to mean an employer must always modify its leave policy to grant additional leave unless it can prove either an alternative accommodation would work as well or that undue hardship would result, the court said.

But the court said “the sentence clearly indicates that these two enumerated conditions come into play only after it's clear the leave policy modification is a reasonable accommodation necessary to ensure the employee can perform [her] essential job functions.”

Hwang can't show her request for six months of additional leave was a reasonable accommodation, so even if the EEOC guidance were persuasive, the employer's obligation to modify its leave policy wouldn't kick in, the court said.

“Neither is there anything inherently discriminatory in the fact the university's six-month leave policy is ‘inflexible,' as Ms. Hwang would have us hold,” the court said. “To the contrary, in an least one way an inflexible leave policy can 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 with fewer rules, more discretion, and less transparency.”

The Tenth Circuit cited the U.S. Supreme Court decision in US Airways Inc. v. Barnett, 535 U.S. 391, 12 AD Cases 1729 (2002), in which it said the Supreme Court rejected the notion that inflexible seniority policies necessarily discriminate against employees with disabilities.

“All the [Supreme] Court said there about inflexible seniority policies might be just as easily said here about inflexible leave policies,” the court said.

No Disparate Treatment or Retaliation

Its rejection of Hwang's claim doesn't mean “inflexible leave policies are categorically immune from attack” under the Rehabilitation Act or ADA, the court said.

For example, if an employer provides “unreasonably short sick leave periods” or a plaintiff shows a supposedly inflexible policy is “a sham” because “other employees are routinely granted dispensation” from a maximum leave period but disabled employees are not, then a disparate treatment claim may arise, the court said.

“But the leave policy here granted all employees a full six months' leave—more than sufficient to comply with the [Rehabilitation] Act in nearly any case—and Ms. Hwang makes no allegations suggesting unequal enforcement of the policy's terms,” the court said.

Hwang also alleged retaliation, asserting the university failed promptly to explain her post-employment health benefits under COBRA and failed to hire her for two other positions because of her failure to accommodate complaint.

But the court said Hwang didn't allege the university failed to meet its statutory deadline for informing her about post-employment health benefits.

Hwang can't pursue a retaliation claim regarding the failure to rehire because she alleges no facts suggesting the university acted with discriminatory animus, that Hwang was qualified for the jobs at issue or that the relevant hiring managers were aware of her Rehabilitation Act complaint, the court said.

Judges Harris L. Hartz and Carlos F. Lucero joined in the decision.

Leeds Law LLC in Topeka represented Hwang. The Kansas State University Office of General Counsel in Manhattan, Kan., represented the university.

To contact the reporter on this story: Kevin P. McGowan in Washington at kmcgowan@bna.com

To contact the editor responsible for this story: Susan J. McGolrick at smcgolrick@bna.com

Text of the opinion is available at http://www.bloomberglaw.com/public/document/GRACE_HWANG_Plaintiff__Appellant_v_KANSAS_STATE_UNIVERSITY_Defend.