Last month, President Trump nominated Judge Neil Gorsuch from the United States Court of Appeals for the Tenth Circuit to fill the vacant seat left by the late Antonin Scalia on the United States Supreme Court. While Judge Gorsuch's nomination has been met with both praise and criticism from a divided electorate, it may bring good news to employers wrestling with leave requests under federal disability laws.
In 2014, Judge Gorsuch authored Hwang v. Kansas State University, in which the Tenth Circuit ruled that the university was not required under the Rehabilitation Act to grant an employee's request for a more than six-month leave of absence due to an illness. That request, the court reasoned, was not a reasonable accommodation that allowed the employee to perform the essential functions of her job. Judge Gorsuch was none too subtle in expressing his views on leave as a reasonable accommodation in the opinion. The statute, he wrote, "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." He further reasoned that "reasonable accommodations—typically things like adding ramps or allowing more flexible working hours—are all about enabling employees to work, not to not work."
In Hwang, the Tenth Circuit also rejected the employee's argument that an inflexible leave policy allowing for no more than six months of sick leave was inherently discriminatory against disabled employees. Judge Gorsuch explained that "in at least one way an inflexible leave policy can serve to protect rather than threaten the rights of the disabled—by ensuring disabled employees' leave requests aren't secretly singled out for discriminatory treatment, as can happen in a leave system with fewer rules, more discretion, and less transparency."
While the Hwang decision in the Tenth Circuit is not binding on courts in New England, it sheds light on how Judge Gorsuch's confirmation to the Supreme Court could have a lasting impact on employers' leave policies and the contours of leave as a reasonable accommodation under the Americans With Disabilities Act and the Rehabilitation Act.
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