I'm feeling rather charitable this evening as I punch out this post. Maybe it's the proud feeling of crossing off my bucket list taking my four-year-old son to a Sunday early-bird at the biggest dive bar in South Jersey. (*Bonus points if you can guess the bar).
Well, I'm not sure if "proud" really captures it.
(And before you call DYFS, that's sour mix pineapple juice).
But anyway, get a load of this opinion from the Tenth Circuit Court of Appeals [an enhanced version of this opinion is available to lexis.com subscribers]. If you're representing an employer and happen to be teeing up a dispositive motion where the issue is whether six months of leave is a reasonable accommodation, then look no further.
Generally, six months of leave is not a reasonable accommodation.
Here are the basic facts:
Plaintiff-employee has cancer (disability) and defendant-employer has a six-month leave policy. Employee takes six months of leave, after which, she requests an additional semester of leave, promising to return in the Summer. Employer says no and offers employee long-term disability (essentially firing her). Employee sues under the Rehabilitation Act (the equivalent of the Americans with Disabilities Act), alleging that her employer should have accommodated her with the additional leave.
Employer wins. (Although, you probably figured that out already).
But, not only did the employer win, it was on a motion to dismiss, rather than a motion for summary judgment. So, you know the lower court and the affirming appellate court came out guns blazing.
Quotables from the the 10th Circuit's blistering opinion.
So, get ready management-side lawyers, here come the money quotes from the opinion. And since I'm not sure whether it has been published yet, if you're reading this post, you'd better cite it in your brief.
(Just leave out the taking-the-four-year-old-to-the-dive-bar part, ok?)
Here we go:
But before you dust off those no-fault policies...
The Tenth Circuit did not go so far as to say that leave of any length is no longer a reasonable accommodation. Indeed, other parts of this opinion (and common sense) should have you re-thinking that:
"[A]n employee who needs a brief absence from work for medical care can often still discharge the essential functions of her job. Likewise, allowing such a brief absence may sometimes amount to a (legally required) reasonable accommodation so the employee can proceed to discharge her essential job duties. After all, few jobs require an employee to be on watch 24 hours a day, 7 days a week without the occasional sick day."
Also, the court pointed out that "no-fault" leave policies with very short leave periods may not comport with the ADA. Similarly, a sham policy would fail too.
But the big takeaway here is that we have another court holding that six months of leave is generally not a reasonable accommodation.
This article was originally published on Eric B. Meyer's blog, The Employer Handbook.
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