Reports of the demise of inflexible leave policies—leave policies that result in termination if the employee is unable to return to work after a fixed amount of leave – are premature.

The EEOC has sued numerous employers, alleging that their “inflexible leave policies” were unlawful because they did not take into account the possibility of the employer’s providing additional leave as a reasonable accommodation. Those employers have agreed to pay, literally, millions of dollars to settle those cases. We have posted about those settlements. See here.

But now, the U.S. Court of Appeals for the Tenth Circuit has not only rejected the idea that inflexible leave policies are inherently discriminatory, but has gone even further and has recognized that such policies “can serve to protect…the rights of the disabled” by ensuring fair and uniform treatment. Hwang v. Kansas State University (10th Cir. May 29, 2014). The court’s decision may very well be a “tipping point” in ADA inflexible leave law litigation.

Hwang had been granted six months of medical leave under the employer’s inflexible leave policy. When her request for additional leave was denied, she sued under the Rehabilitation Act, a law very similar to the ADA, which prohibits recipients of federal funding from discriminating on the basis of disability. Citing EEOC guidance, she claimed that the inflexible leave policy was inherently discriminatory and that her employer needed to provide her additional leave as a reasonable accommodation. The district court granted the employer’s motion to dismiss her complaint. The Tenth Circuit affirmed that decision.

While most decisions begin with a recitation of the procedural history of the case and the facts, the Tenth Circuit got right to the point. It framed the issue in the opening sentence: “Must an employer allow employees more than six months’ sick leave or face liability under the Rehabilitation Act?”

And then immediately answered its question: “Unsurprisingly, the answer is almost always no.” By adding ““unsurprisingly,” the court suggests that not only is “no” the right answer but it is not even a close question.

The Hwang case is replete with quotable quotes supporting the legality and business justification of inflexible leave policies.  The court said that it “perhaps goes without saying that an employee who isn’t capable of working for [six months] 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 accommodations–typically things like adding ramps or allowing more flexible working hours—are all about enabling employees to work, not to not work.”  It is “difficult to conceive how an employee’s absence for six months…could be consistent with discharging the essential functions of most any job in the national economy today,” the court added.

The court also said that 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.”  The court noted that such policies provide the same positive benefits as a seniority system in that they create and fulfill employee expectations of fair, uniform treatment, introduce an element of due process and limit potential unfairness in personnel decisions.

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

There will be more to come on this very significant decision.