Is an Extended Leave of Absence a Reasonable Accommodation?
The U.S. Court of Appeals for the Seventh Circuit recently held in no uncertain terms that "a multi-month leave of absence is beyond the scope of a reasonable accommodation under the ADA." The Seventh Circuit's Severson v. Heartland Woodcraft, Inc. decision sharply departed from the majority approach and EEOC guidance on how much unpaid time off employers must give disabled workers as a "reasonable accommodation" under the Americans with Disabilities Act (ADA). While this decision is welcomed by employers, especially those operating in Indiana, Illinois, and Wisconsin (which fall within the Seventh Circuit), it likely will serve as an outlier for the foreseeable future.
The EEOC suggests that unpaid leave is a reasonable accommodation to an employee with a disability if the employee is unable to work at the time the leave is requested, the leave will allow the employee to return to work in the future, and the leave does not create an undue hardship. The EEOC takes the position that an employee may be entitled to leave under the ADA even when an employee is not eligible for FMLA leave (i.e., employee does not meet the FMLA's eligibility requirements or has already exhausted the FMLA's 12-week annual leave, or the employer is not covered under the FMLA). The majority of circuits have agreed, more or less, with the EEOC's approach and have held that the ADA usually compels an employer to grant unpaid medical leave for a finite period of time beyond the employer's own leave policy as a reasonable accommodation. Courts throughout the country have found leaves of a few weeks, to a few months, to much longer reasonable under case-specific circumstances.
In Severson, the plaintiff was given FMLA leave for his back injury. Two weeks before his 12-week leave expired, the plaintiff informed the HR Manager that his condition had not improved and he would undergo surgery, on the precise date his 12-week leave expired under FMLA. The plaintiff requested an extension of his leave for at least two months, the typical recovery time for that type of surgery. One day before the plaintiff's surgery, the HR Manager informed the plaintiff that his FMLA leave would expire the next day and terminated his employment but invited him to reapply for a position when he was "medically cleared to work." The plaintiff had his scheduled surgery and was cleared to work, but never reapplied. Instead, he sued his former employer for failing to accommodate his disability by not offering him: "(1) a two or three month leave of absence, (2) transfer to a vacant job or (3) a temporary, light-duty position with no heavy lifting." The district court granted summary judgment for the employer. The Seventh Circuit affirmed.
The Seventh Circuit held that the term '"reasonable accommodation' is expressly limited to those measures that will enable the employee to work," based on its reading of "qualified individual" under the ADA. Because the Seventh Circuit reasoned "[a]n employee who needs long-term medical leave cannot work," the plaintiff in Severson was not entitled to a reasonable accommodation under the ADA.
Notably, the Seventh Circuit called the EEOC's position—that leave is "reasonable where it is of definite, time-limited duration, requested in advance and likely to enable the employee to perform the essential job functions when he or she returns"—"untenable." And it criticized the EEOC for not specifying a length of time for reasonable leave because, in its view, that transforms the ADA into "an open-ended extension of the FMLA." The Seventh Circuit emphasized that "[t]he ADA is an antidiscrimination statute, not a medical leave entitlement." Medical leave, the Seventh Circuit explained, falls under the purview of the FMLA where employees are unable to perform their job's essential functions; the ADA only applies to employees who can do their job. But the Seventh Circuit qualified its aggressive holding in Severson, by recognizing that intermittent leave for "a couple days or even a couple weeks" to, for example, treat symptoms of arthritis or lupus may be appropriate reasonable accommodation under the ADA.
Grappling with whether and how much leave is reasonable is one of the most difficult, and often frustrating, ADA issues confronting employers (and courts) today. Courts around the country, and the EEOC, have offered differing opinions on just how much leave is reasonable under various fact-specific circumstances.
Severson is certainly a welcome decision for employers in the Seventh Circuit. It lends support for employers who wish to be more aggressive in limiting extended leaves of absence when FMLA is unavailable to an employee. But the majority of jurisdictions are less employer-friendly and offer no bright-line rules in analyzing whether an extended leave of absence is a reasonable accommodation under the ADA. And because the EEOC clearly takes a different approach to leaves than the Seventh Circuit, even Indiana, Illinois, and Wisconsin employers would be well-advised to seek legal counsel before relying on the Severson case to deny a leave request.
Ultimately, it is important in any instance—regardless of jurisdiction—to engage in an individualized, interactive process with the employee requesting an accommodation and to thoroughly document that process. Best practices for employers are to ensure that they have the employee's most current medical information, assess the employee's request in light of the employee's medical condition and business needs, and grant the request for leave unless doing so would pose an undue hardship, the leave request is indefinite, or it is unlikely that after the leave the employee would be able to perform his/her essential job functions.
Employers should consult with legal counsel before denying a leave request or granting a leave request that is inconsistent with past practice.
Carroll Bible co-wrote this article; she will be licensed in Minnesota on October 27, 2017.