Perhaps the most common question faced by employment law attorneys representing management involves employees whose medical condition requires a long leave of absence from work. The employee exhausts FMLA leave and/or the employer’s short-term disability leave, yet is still unable to return to work. At what point can the employer conclude that its legal obligation to provide leave to the employee ends? Last month, the Tenth Circuit Court of Appeals took a practical view of this issue, refusing to require employers to provide extended leaves.
 
In Hwang v. Kansas State Univ., a faculty member was undergoing treatment for cancer and exhausted the University’s six month leave policy. She sued under the Rehabilitation Act after the employer refused to extend leave beyond this point. In support of her claim, the plaintiff cited an EEOC guidance claiming that inflexible leave policies violate the Rehabilitation Act and the ADA (which are interpreted the same), and that employers must make individual decisions about whether the additional leave request constitutes an undue hardship.
 
Instead of focusing on the undue hardship question, the Tenth Circuit’s decision rested on its determination that the plaintiff was not a qualified person capable of performing the essential functions of her job. For a faculty member, these functions involved teaching. The court asked how leave beyond the six month maximum would have resulted in the plaintiff’s ability to teach? If she could not teach, leaving the job open for additional time was not legally required because it did not result in performance of the job’s essential functions.
 
Taken to extremes, this decision would call into question the entire idea of leave as a form of reasonable accommodation under the ADA. Perhaps a shorter leave would have allowed her to teach part of the semester, but the Tenth Circuit was unwilling to extend this possibility beyond six months. The court also rejected the EEOC’s position that the employer always bears the burden of demonstrating that any requested leave, no matter how long, constitutes an undue hardship.
 
If other federal appellate courts adopt this reasoning, employers could revert to reliance on reasonable maximum leave policies as the basis for termination of a disabled employee unable to return to work after a long absence.