A federal court of appeals has given clear direction for employers who are faced with an employee whose illness or disability makes it impossible to return to work when Family Medical Leave expires. The case exemplifies the conundrum when a number of well-meaning but sometimes contradictory federal laws apply to the fact situation.
In this case, an assistant professor at Kansas State University was diagnosed with cancer before the start of her first year of classes. She asked for and received a six month leave. When that leave was about to expire, she asked for more time off, promising to return by the summer term. The University told her that its leave policy was specific about the fact that no more than six months of leave was allowed. She sued, complaining that the Rehabilitation Act (identical with the Americans with Disability Act (ADA) mandated that she be allowed this additional time.
The federal district court disagreed, saying that she was not eligible for additional time.
On appeal, the 10th Circuit Court of Appeals upheld the decision. It said:
“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. . .
“The [EEOC] expressly states [in its enforcement guidance on reasonable accommodations] that an employer does not have to retain an employee unable to perform her essential job functions for six months just because another job she can perform will open up then. An employer doesn’t have to do so much, the EEOC says, “because six months is beyond a reasonable amount of time” . . . Here then the EEOC seems to agree with our conclusion that holding onto a non-performing employee for six months just isn’t something the Rehabilitation Act ordinarily compels. (My emphasis)
We must remember that this decision is from the 10th Circuit, not the 7th (which includes Wisconsin, Illinois and Indiana). Nevertheless, its guidance is helpful to employers in our region. But this is remarkably clear language, and this is always good news.
This is a good time to evaluate your current leave policies. We suggest the following:
- Be specific about the limits of your FMLA leave and any extensions that are allowed by policy.
- Always use an interactive process when an employee asks for accommodation of any sort when approved leave expires.
- Treat all employees equally.
- When an employee cannot return to work and suggests no options for accommodation, be clear in your termination letter that the decision is made because he/she is unable to perform the essential functions of the job.
This article is provided for general information and should not be relied upon as legal advice for a specific situation. If you are in need of specific advice or legal representation, please do not hesitate to contact us.
©2014 Bea & VandenBerk
 Hwang v. Kansas State Univ., Case No. 13-3070 issued May 29, 2014. On appeal from the U.S. District Court for Kansas, DC No. 5:11-CV-04185-EFM-KMH.
 The 10th Federal District includes Colorado, Kansas, New Mexico, Oklahoma, Utah and Wyoming.