Less than one month after the Tenth Circuit Court of Appeals held that an employer policy that limits the amount of leave time any employee may take was fair, lawful and protects disabled employees, an employer sued by the EEOC for having such a policy has agreed to pay $1.35 million and “undertake significant remedial measures” to settle the litigation. The settlement prohibits the employer from adopting the type of policy found lawful by the Tenth Circuit in Hwang v. Kansas State University. Our post about Hwang is here.

In the lawsuit, the EEOC had alleged that Princeton Health Care System (PHCS) provided its employees up to 12 weeks of leave, the maximum allowed under the FMLA. In Hwang, the employer provided a maximum leave of 26 weeks.  The Hwang court stated that such a 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.”  Such policies provide the same positive benefits as a seniority system in that they create and fulfill employee expectations of fair, uniform treatment, introduce an element of due process and limit potential unfairness in personnel decisions, the Hwang court added.

There has already been much litigation concerning inflexible leave policies and there will likely be much more.  The EEOC’s press release about the PHCS settlement notes that employers have already paid more than $34 million to resolve lawsuits the EEOC has brought concerning leave and attendance policies. Whether a leave limits policy violates the ADA, as the EEOC contends, or is lawful, as the Hwang court held, is the type of issue that could very well wend its way to the Supreme Court.