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When is a leave of absence required as a reasonable accommodation under the Americans with Disabilities Act – and for how long?  That question came under the microscope again recently, to the advantage of employers.

An employer’s obligation to provide leave to a disabled employee as a workplace accommodation has been a perpetual source of confusion, and fertile ground for pitfalls.  Despite 2009’s ADA Amendments Act which dramatically expanded the number of employees covered under the Americans with Disabilities Act (ADA), the EEOC still has not provided significant direction on how to administer leave as an accommodation. The last guidance from the ADA came in 2002 in its broad “Enforcement Guidance Regarding Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act (ADA)” which, for many employers, raised more questions than it answered.  In 2012, Reed Group published its Whitepaper, “Today’s Multi-Million Dollar Question:  When Must an Employer Provide Leave as an ADA Reasonable Accommodation?” an in-depth review of the complicated landscape of leave as an accommodation.  As the whitepaper noted, the issues surrounding this topic are complex, and current, thorough guidance on how employers should provide leave as an accommodation is scarce or nonexistent.

The 10th Circuit did not shy away from making a definitive ruling on this topic in its May 29, 2014, decision in Hwang v. Kansas State University, finding in favor of the employer, who argued that the 6-month leave granted to accommodate her condition was sufficient, and that under the circumstances (Hwang had been diagnosed with cancer) anything further would not qualify as a reasonable accommodation.

Many employers will see this case as a breath of fresh air, as it finally offers decisive guidance on how to handle the amorphous terrain of leave as an accommodation.  To be sure, it is an unequivocal opinion that should leave employers located in the 10th Circuit’s domain feeling more assured when assessing employees’ requests for leave as an accommodation. It is hard to read this decision in any way other than to validate a conclusion that a maximum of a 6-month leave of absence is almost always an adequate accommodation.

However, we urge employers to exercise caution before relying too heavily on this decision:

  • Don’t throw the baby out with the bathwater! Employers must still follow the ADA’s interactive process:  employers must assess the employees’ individual needs and position, and determine whether and how it can accommodate them.
  • Employers must ensure that policies are applied consistently, across the board, for disabled and non-disabled employees. If an employer has an inflexible leave policy limiting a leave of absence to 6 months, it must apply the policy uniformly without singling out disabled employees for more onerous treatment.
  • Remember that this was a decision issued by a federal court in the 10th Circuit (Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming). Might other federal courts follow suit? It remains to be seen, but this decision is only binding in those jurisdictions.
  • For a more in-depth analysis, download Reed Group’s whitepaper on this subject, recently amended to include the Hwang v. Kansas State University decision.
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