supreme courtIn case your news and twitter accounts are down, and you otherwise have not heard the news…   President Trump has nominated Judge Gorsuch from the U.S. Court of Appeals for the Tenth Circuit to fill Justice Antonin Scalia’s vacant Supreme Court seat.  There are surely countless articles about his nomination hitting the airwaves even as I type this, but for employers who struggle with leave management issues, a quick review of the Hwang v. Kansas State University decision, authored by Judge Gorsuch, may provide employers with hope that leave management law could move in the right direction.  In Hwang, the Tenth Circuit determined that a more than a six month leave of absence was an unreasonable accommodation.  Some of the more memorable quotes from that decision include:

“Must an employer allow employees more than six months’ sick leave or face liability under the Rehabilitation Act? Unsurprisingly, the answer is almost always no.”

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

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“Still, it’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 in any place — could be consistent with discharging the essential functions of most any job in the national economy today. Even if it were, it is difficult to conceive when requiring so much latitude from an employer might qualify as a reasonable accommodation. 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. 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.”

Although Hwang involved the Rehabilitation Act, his opinion addressed head on the EEOC’s views on ADA reasonable accommodations in the leave of absence context.  And with respect to “inflexible” leave policies that the EEOC has been pushing against in recent years, Judge Gorsuch 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. 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.”

A nomination certainly doesn’t guarantee confirmation and, even if confirmed, Judge Gorsuch’s selection would not change ADA law overnight. However, Judge Gorsuch’s opinion in Hwang is arguably the most vigorous challenge to the EEOC’s view of leave as a reasonable accommodation and very well may be the proverbial light at the end of the tunnel for employers.