TENTH CIRCUIT TAKES AIM AT EEOC’S POSITION ON “NO FAULT” ATTENDANCE POLICIES

wowIn a surprising, almost shocking turn of events, the Tenth Circuit issued a published opinion on May 29th, turning the status of ADA leave accommodations on its heels. The case is Hwang v. Kansas State University, and the full opinion is here.

Let’s start with the opening line of the opinion, cogently stating the issue: “Must an employer allow employees more than six months’ sick leave or face liability under the Rehabilitation Act?”

If you would have asked this question to me, or any employment lawyer knowledgeable on the ADA and ADAAA, our answer (before May 29th) would have been: “Maybe, Probably Yes—No fault leave policies are subject to modification as a reasonable accommodation, and the exemption is if the employer can demonstrate it would suffer a demonstrable, convincing undue hardship by extending the leave—a tough burden since the employee has already been on leave.” See my earlier article on no fault leave policies here.

The Tenth Circuit’s recent answer: “Unsurprisingly, the answer is almost always no.”

Wait, what?!?! Unsurprisingly? This answer is very surprising! Unexpected! Startling!

The Facts: By all accounts, Ms. Hwang “was a good teacher suffering a wretched year.” She signed a contract with Kansas State to be an assistant professor over three academic terms (fall, spring and summer). Before the fall term began, Hwang was diagnosed with cancer. Kansas State provided Hwang with a six month paid leave of absence. At the end of the six months, Hwang requested an extension of the leave, stating she could return for the summer session. Kansas State refused, citing its “inflexible policy allowing no more than six months’ leave.” Hwang sued under the Rehabilitation Act, the same legal standard regarding accommodations as the ADA. The District Court dismissed Hwang’s claim on a motion to dismiss.

The Holding: Tenth Circuit affirmed, holding Rehabilitation Act does not require an employer to extend its six months’ leave or modify its “inflexible leave policy” as a reasonable accommodation.

Oh, but this decision has so much more to offer than just that holding.

Take the fact the Tenth Circuit outrightly rejected the EEOC’s guidance regarding modifying no fault attendance policies as a reasonable accommodation:

 “ . . . the EEOC manual commands our deference only to the extent its reasoning actually proves persuasive. . . . And the sentence Ms. Hwang cites [requiring modification of no fault leave policy as a reasonable accommodation] doesn’t seek to persuade us of much.”

Ouch. Smack-down.

The Tenth Circuit then cites to another portion of the same EEOC Guidance and used it against the EEOC:

“[F]lipping through the EEOC manual reveals that when it turns more directly to the question presented in our case it speaks in a way distinctly unhelpful to Ms. Hwang. A few pages later the agency expressly states that an employer does not have to retain an employee unable to perform her essential job functions for six months just because another job she can perform will open up then. An employer doesn’t have to do so much, the EEOC says, “because six months is beyond a reasonable amount of time.” . . . 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 compels.”

Double ouch. Double smack-down.

Further sealing the deal, the Tenth Circuit found an “inflexible leave policy,” also called a “no fault” leave policy, actually benefits and is good for disabled employees. Here’s the rationale:

“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. To the contrary, in at 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 in a leave system with fewer rules, more discretion, and less transparency.“

So, we now have an appellate court endorsing no fault leave policies—the same policies the EEOC has been condemning (and suing employees over).

Finally, this opinion is just chock-a-block full of quotable jewels. Consider this:

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

Or this beauty:

“Ms. Hwang’s is a terrible problem, one in no way of her own making, but it’s a problem other forms of social security aim to address.”

And this:

“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.”

Simply put, this opinion is too good to be true! Let’s see if it sticks or other circuits adopt it.