Tenth Circuit Upholds Employer’s Inflexible Leave Policy

by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

Equal Employment Opportunity Commission (EEOC) guidance provides that employers violate the Americans with Disabilities Act (ADA) by enforcing inflexible policies with specified leave limits. The EEOC has filed lawsuits against many employers for discharging employees who were unable to return to work after their maximum allowable leave periods had expired. Consequently, some employers have revised or even eliminated these fixed leave policies, allowing for flexibility when an employee’s medical condition requires leave beyond the maximum allowed by company policy. However, employers’ inflexible leave policies may not be as inadvisable as previously thought. Based on a recent Tenth Circuit Court of Appeals case, Hwang v. Kansas State University, which approved a six-month maximum leave policy, such policies may now indeed be permissible.

Grace Hwang, assistant professor at Kansas State University, had contracted to teach classes for three academic terms (fall, spring, and summer). Prior to the start of the fall term, Hwang was diagnosed with cancer and the university granted her a six-month paid leave of absence while she sought treatment. As the leave came to an end, Hwang’s physician advised her to seek additional leave through the end of the spring semester. The university denied this request, citing its inflexible leave policy that allowed employees to take a maximum of six months of medical leave.

Hwang alleged that the university effectively terminated her employment, and she filed suit for alleged violations of the Rehabilitation Act, which prohibits disability discrimination by entities that receive federal funds. Hwang brought claims for discrimination, failure to accommodate, retaliation, and disparate treatment. The U.S. District Court for the District of Kansas granted the university’s motion to dismiss all four claims; Hwang then appealed to the Tenth Circuit.

Hwang argued that the university was required to provide her with additional leave beyond six months as a reasonable accommodation of her disability and cited language from the EEOC guidance manual to support her claim that the inflexible leave policy was inherently discriminatory:

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.

More Than Six Months’ Leave Is Not A Reasonable Accommodation

The university conceded that Hwang was qualified for her position and that her cancer qualified as a disability, but argued that it was not required to go beyond its six-month leave limit to accommodate Hwang’s condition. The court agreed, noting that because Hwang could not work for an extended period of time, she was unable to perform the essential functions of her job. “Reasonable accommodations,” the court wrote, “are all about enabling employees to work, not to not work.” Further, the court cited the EEOC guidance manual for the proposition that an employer does not have to retain an employee who cannot perform job duties for six months, as “six months is beyond a reasonable amount of time.”

According to the court, a brief absence from work for medical treatment may constitute a reasonable accommodation if the employee is still able to perform the essential functions of his or her job. However, the court commented that it would be difficult to imagine a situation in which six months of leave, during which the employee could not perform any work, would be reasonable. The court further noted that one of the purposes of the Rehabilitation Act is to provide reasonable accommodations that would allow disabled employees to work and does not require employers to provide a “safety net” for those who cannot work.

The court held that there is nothing inherently discriminatory about an inflexible leave policy as long as the limit is not unreasonably short. Further, the court held that such policies can even prevent discrimination when applied consistently, as they foster employee expectations of fair, uniform treatment. Of course, if an employer’s leave policy was applied inconsistently and other employees were given more favorable treatment than disabled employees, an inference of discrimination would exist. Here, the university policy capped leave at six months for all employees, and Hwang did not allege that the university had applied the policy differently to her as compared to non-disabled individuals.

What Does This Decision Mean For Employers?

Though Hwang alleged violations of the Rehabilitation Act, courts typically analyze such claims under the same framework as claims brought under the ADA. Based on this court’s analysis, an employee’s request for more than six months of leave during which the disabled employee cannot work is not a reasonable accommodation. Therefore, this case may be helpful to employers in defending ADA claims regarding their inflexible leave policies.

However, it is important to note that this case is binding only on states within the Tenth Circuit. All employers, but especially those outside the Tenth Circuit, should still be cautious in implementing or enforcing inflexible leave limit policies. These policies may be considered discriminatory if leave limits are unreasonably short, or if applied inconsistently between disabled and non-disabled employees. Lastly, employers should continue to engage in the interactive process and carefully evaluate every employee request for accommodation, including requests for extended leave, and administer their leave policies consistently.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Ogletree, Deakins, Nash, Smoak & Stewart, P.C. | Attorney Advertising

Written by:

Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

Ogletree, Deakins, Nash, Smoak & Stewart, P.C. on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.