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.Continue Reading University gets it right when it says, “enough is enough”: Tenth Circuit upholds inflexible leave policy under Rehabilitation Act

Companies covered by federal affirmative action obligations have some major changes for which to prepare. The Office of Federal Contract Compliance Programs (OFCCP) has issued two new rules which take effect March 24, 2014. The new rules expand the affirmative action requirements for covered veterans and disabled persons.

For over 30 years, regulations under the Vietnam Era Veterans Readjustment Assistance Act of 1974 (VEVRAA) and under Section 503 of the Rehabilitation Act of 1973 have required covered employers to engage in good faith efforts to recruit and employ covered veterans and disabled persons. The requirements include the obligation to invite applicants and employees to “self-identify” as a veteran or disabled person and to take additional affirmative action measures. Contractors with over 50 employees and covered contracts which exceeded certain trigger limits also must prepare annual written affirmative action plans (AAPs) for veterans and disabled persons. However, until now, there was no obligation for employers to develop and retain hiring and other employment data or to set numeric goals for employment of veterans or disabled persons, as is required in the affirmative action rules for minorities and females.

The new rules require employers to gather and retain data showing the results of their recruiting and hiring efforts and to set numeric targets for hiring veterans and disabled persons. The new rules also include significant additional obligations for reviewing, analyzing, and documenting good faith efforts and results.
Continue Reading Major Changes to Affirmative Action Requirements Effective March 24, 2014

The recent Sixth Circuit case of McKelvey v. Secretary of United States Army highlights the plight of many disabled veterans returning to the civilian work force and presents a lesson for employers on how not to address those issues.
Continue Reading Sixth Circuit Orders Reinstatement and Overturns $4.4 Million Front Pay Award In Vet’s Disability Discrimination Case

The U.S. House of Representatives overwhelmingly passed the ADA Amendments Act, H.R. 3195, by a vote of 402-17. The bill would amend the Americans with Disabilities Act (ADA) and reject several U.S. Supreme Court decisions that have narrowed the scope of the ADA’s protection. If enacted, the bill would be effective January 1, 2009.

The intent of the bill is to restore the broad scope of protection available under the ADA.  The legislation includes the following key provisions:

  • The definition of disability is to be construed broadly.
  • Clarifies the definition of “disability” by:
    • Defining “substantially limits” to mean materially restricts (rather than the current standard of prevents or severely restricts);
    • Defining “major life activity” broadly and including within that definition “major bodily functions”;
    • Clarifying that an impairment substantially limits one major life activity does not have to limit any other major life activities;
    • Clarifying that impairments that are episodic or in remission are disabilities if they would substantially limit a major life activity when active;
    • Prohibiting consideration of the ameliorative effects of mitigating measures in determining whether an individual has a disability; 
    • Stating that an individual does not have to establish that the impairment limits or is perceived to limit a major life activity under “regarded as” disabled provisions. 
  • Provides that employers are not required to provide reasonable accommodations to employees who are “regarded as” disabled.

Continue Reading House Overwhelmingly Approves ADA Amendments Act