Guideline on Too Much Leave

By Elizabeth Chilcoat

Is 6 months’ leave a reasonable accommodation? “Unsurprisingly, the answer is almost always no,” says the Tenth Circuit. Hwang v. Kansas State University, No. 13-3070 (10th Cir. May 29, 2014). Applying the Rehabilitation Act (which mirrors the ADA but applies to federal government employment and organizations receiving federal financial assistance), the court considered the case of an employee on a one-year contract who had taken six months’ leave for cancer treatment. After exhausting all leave available under the employer’s policies, the employee asked for more. The employer denied the request and discharged her because she could not yet return to work. The employee sued, claiming the employer failed to provide a reasonable accommodation.

The court began with the obvious – a medical leave might enable an employee to perform his or her job following the leave, and most employees are allowed to miss some work for illness; so some leave may be a reasonable accommodation. However, finding the outer limit of “reasonable” leave is another question. Factors to consider include the employee’s duties, the nature and length of the leave requested, and the impact the leave will have on other employees. The court ruled that, in most cases, a leave of six months or more will not be reasonable; an absence of six months is (usually) inconsistent with performing a job’s essential functions.