Employers who have been concerned about the EEOC’s stance on inflexible maximum leave policies can find some comfort in the Tenth Circuit’s decision in Hwang v. Kansas State University, wherein the court held a six month leave of absence was a reasonable accommodation, and the University’s denial of additional time was not a violation of the Rehabilitation Act.


Grace Hwang was employed as a professor at Kansas State University from 1994 until February 2012, on a year-to-year contract. Ms. Hwang served as an assistant professor in KSU’s School of Leadership Studies. In 2005, Hwang was diagnosed with breast cancer. She underwent surgery, chemotherapy and radiation and missed about three weeks of work. Hwang returned to her full load of classes for four years until she was diagnosed with leukemia. Hwang was encouraged to participate in an aggressive course of chemotherapy and to have a bone marrow transplant, which would keep her away from work for about six months. At that time, Hwang had only two months of paid leave time, so she applied for and received additional paid leave through KSU’s Shared Leave Program.

Hwang was released from the inpatient care facility in November 2009. However, at the time of her release, KSU was dealing with a severe outbreak of the H1N1 virus. Hwang’s physicians advised she stay away from campus due to her compromised immune system. Hwang contacted Dr. Mary Tolar, her supervisor, to let her know that she would need to take additional leave through the spring semester. Hwang stated, however, that she planned to teach her online course during the summer.

A couple of weeks after speaking with Dr. Tolar, KSU’s Human Resources Department informed Hwang that she should apply for long term disability benefits through the Kansas Public Employees Retirement System (“KPERS”). Hwang applied for the benefits. About three months later, she was informed that her request had been approved, and that she would be responsible for paying for her own health insurance premium. She was also told that if she accepted the long term disability benefits, she would be required to resign her position at KSU. Hwang was given one day to make a decision, because her shared leave benefits were going to run out the next day. Hwang opted for the long term disability benefits and resigned her position from KSU effective February 21, 2010.

Hwang attempted to continue her cancer treatment a couple of weeks later, but was informed her insurance had been canceled. Hwang applied for two positions, Special Assistant to the President position and Interim Associate Provost for International Programs position, but she was not hired for either. Hwang also applied for an adjunct position in the Department of American Ethnic Studies, which paid only $3,000 per semester, and did not include any benefits. Hwang was selected to fill that position by the Director of the department, but the Dean of the University had not approved her selection by the time she filed suit.

Ms. Hwang Files Suit

Hwang initiated a lawsuit in federal court alleging that KSU’s treatment of her treatment violated Section 504 of the Rehabilitation Act of 1973. She asserted four causes of action: (1) discrimination; (2) failure to accommodate; (3) retaliation; and (4) disparate treatment. KSU moved to dismiss Hwang’s complaint for failure to state a claim. The district court granted KSU’s motion to dismiss the Complaint on all four claims.

The Appeal

The Tenth Circuit affirmed the district court’s ruling finding KSU’s leave policy and failure to provide additional leave time did not violate the Rehabilitation Act. Ms. Hwang failed to demonstrate that KSU discriminated against her, treated her in a manner different from others non-disabled employees, or retaliated against her.

Hwang argued that KSU’s policy was inflexible, and all “inflexible” sick leave policies violate the Rehabilitation Act. Hwang relied on a section found in the EEOC guidance manual, which states:

If an employee with a disability needs additional unpaid leave as a reasonable accommodation, the employer must modify its “no-fault” leave policy to provide the employee with the additional leave, unless it can show that: (1) there is another effective accommodation that would enable the person to perform the essential functions of his/her position, or (2) granting additional leave would cause an undue hardship.

The court did not find this language persuasive, because the antecedent question—“[w]hen is a modification to an inflexible leave policy legally necessary to provide a reasonable accommodation?” remained unanswered. Furthermore, in the same manual the EEOC expressly states an employer does not have to retain an employee unable to perform her job functions for six months, “six months is beyond a reasonable amount of time.” The court found it difficult to conceive how a six-month absence could be consistent with performing the essential functions of most any job, and even if it was, it is still impossible to understand, “when requiring so much latitude from an employer might qualify as a reasonable accommodation.” The record in this case showed Hwang could not perform the essential functions of her job even with a reasonable accommodation, which highlights the difference between an absence that enables an employee to discharge the essential duties of her job and one that renders an employee unable to discharge those essential duties.

More importantly, the court held there is nothing inherently discriminatory about an inflexible leave policy, in fact, so long as the leave time is not unreasonably short, such policies can protect the rights of the disabled employees, by making sure they are not singled out. The court bolstered this argument with language from US Airways, Inc. v. Barnett, which stated “inflexible” policies can “provide important employee benefits by creating, and fulfilling, employee expectations of fair, uniform treatment.”

Having found Hwang was also unable to state a claim of disparate treatment and retaliation, the Tenth Circuit affirmed the district court’s ruling.


  •  Although Hwang is a favorable opinion for employers arising under the Rehabilitation Act, courts generally analyze those cases the same as cases under the Americans with Disabilities Act. Nevertheless, employers should recognize that Hwang is only binding in Tenth Circuit states. The Sixth Circuit has not analyzed similar facts under the Rehabilitation Act, but the court has upheld similar leave policies in cases where an employee has failed to request an accommodation.
  • The EEOC still frowns upon inflexible leave policies; therefore, it would still be wise for employers to go through the interactive process to determine how much additional leave is required and whether the additional requested leave would be unreasonable under the circumstances.
  • Employers should also be sure to have a clear procedure outlining the ADA interactive process. Although the interactive process necessarily requires a case specific analysis, many employers find it useful to utilize detailed checklists from the moment they are put on notice of an ADA issue. The checklists are beneficial for documenting the disability, requested accommodations, and the on-going conversations with employees.
  • Although the case specific nature of reasonable accommodations makes it difficult, employers still should ensure that they use consistent criteria in enforcing leave policies, so that they can defeat any arguments of disparate treatment. As in this case, the policies were clearly outlined, communicated, and KSU’s human resources department followed them. The employee could not point to an employee who was treated in a more favorable manner. This, of course, was made easier because of the inflexible nature of KSU’s policy.