Tuesday, February 7, 2017

SCOTUS nominee Gorsuch on extended leave as a reasonable accommodation

I don't usually cover two-year old decisions from outside of my jurisdiction, but this case has (1) a hot employment law topic; and (2) the opinion was written by Judge Gorsuch, President Trump's nominee to the Supreme Court. The decision is Hwang v. Kansas State University.

The first two sentences concisely state the issue and the holding - I therefore already like this guy's writing style:
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.
I should note that Kansas State is covered by the Rehabilitation Act because it receives federal funding - however, the same analysis from this case would presumably be applicable to private employers covered by the Americans with Disabilities Act (ADA).

Judge Gorsuch's recitation of facts demonstrates empathy for the plaintiff, while setting up the restrictions of the law:
Judge Gorsuch - courtesy Boston Herald
By all accounts, Grace Hwang was a good teacher suffering a wretched year. An assistant professor at Kansas State University, she signed a written one-year contract to teach classes over three academic terms (fall, spring, and summer). But before the fall term began, Ms. Hwang received news that she had cancer and needed treatment. She sought and the University gave her a six-month (paid) leave of absence. As that period drew to a close and the spring term approached Ms. Hwang's doctor advised her to seek more time off. She asked the University to extend her leave through the end of spring semester, promising to return in time for the summer term. But according to Ms. Hwang's complaint, the University refused, explaining that it had an inflexible policy allowing no more than six months' sick leave.
The Rehabilitation Act requires covered employers to reasonably accommodate qualified (defined as being able to perform the essential functions of the job) employees with disabilities.
There's no question she's a capable teacher, no question she's disabled within the meaning of the Act. But there's also no question she wasn't able to perform the essential functions of her job even with a reasonable accommodation. By her own admission, she couldn't work at any point or in any manner for a period spanning more than six months. 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.
 Judge Gorsuch did acknowledge that a shorter absence may justify leave as a reasonable accommodation: "Of course, an employee who needs a brief absence from work for medical care can often still discharge the essential functions of her job." Distinguishing between the two situations can potentially be difficult. Judge Gorsuch notes some factors for consideration, including "the nature and length of the leave sought, and the impact 'on fellow employees.'"

Again, showing some sympathy for the plaintiff, while describing the confines of the law:
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.
All told, it's a fairly employer-friendly opinion. That said, it seems to be the right result, and strikes a balance between acknowledging the unfortunate circumstances of the employee while recognizing that the Rehabilitation Act does not provide for the remedy she sought.

I have read a few of Judge Gorsuch's opinions and have been impressed by his writing style. His opinions are readable, but he still provides technical legal analysis.


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