Tenth Circuit Says A Leave Of Absence Of More Than Six Months Is Virtually Never A Required Accommodation

"[R]easonable accommodations...are all about enabling employees to work, not to not work."1 This fundamental insight guides the recent decision by the U.S. Court of Appeals for the Tenth Circuit, holding that a six-month, inflexible leave policy is virtually always "more than sufficient" to comply with the Rehabilitation Act, and by implication, the Americans with Disabilities Act (ADA).2 The court provided employers with refreshingly clear guidance on how to best structure leave policies to avoid exposure for disability discrimination claims.

Legal Background

In general, a disabled person can sustain a claim under the ADA or Rehabilitation Act by showing that he or she is capable of performing the essential functions of the position with a reasonable accommodation and the employer refused to provide such an accommodation.3 Prior to Hwang, the Tenth Circuit, like many circuits, had held that an employer need not provide an employee with an indefinite leave of absence as an accommodation under the ADA.4 The court previously ruled that leave can be a reasonable accommodation where the employee can provide the employer with an estimated return-to-work date and that date is in the "near future."5

Factual Background

During her employment, the plaintiff was a well -regarded professor. When she fell ill prior to beginning the school's fall term, she sought and received a six-month paid leave of absence. At the end of that period, her doctor advised her to seek more time off. The school denied her second request and terminated her employment, attributing the denial to a policy allowing no more than six months' sick leave under any circumstances.

The plaintiff then filed suit contending that this effectively terminated her employment in violation of the Rehabilitation Act. The district court dismissed her complaint, and the plaintiff appealed.

Analysis of a Six-Month Restriction on Leave

The plaintiff argued that the failure to extend her sick leave, and the University's inflexible six-month leave limitation, amounted to disability discrimination.

The Rehabilitation Act prohibits recipients of federal funding from discriminating on the basis of disability.6 The court began its analysis by noting that, like the ADA, the analysis of a Rehabilitation Act claim is two tiered. A disabled plaintiff can establish a claim for discrimination by showing that he or she can perform the essential functions of the position with reasonable accommodation and that the employer failed to provide such an...