Employers with employees on leave often wrestle with the situation where the employee has exhausted all leave available under policy and statute, but are still not able to return to work and seek additional time off, usually supported by a doctor’s note. While the FMLA or similar statutory leave may no longer be available, I know I am often discussing with my clients whether further leave should be offered due to potential reasonable accommodation obligations under the ADA. There are countless cases, both state and federal, that speak in an almost automatic fashion to the notion that additional leave may be, and is often, an accommodation that must be or should have been offered to employees who are unable to return to work due to a medical condition. Post ADAAA, many employees qualify as disabled, although that analysis still is technically required. In reality, however, the focus is on whether leave, and how much of it, should be put on the table.
This week, the Seventh Circuit issued its decision in Severson v. Heartland Woodcraft, Inc., No. 15-3754 (7th Cir. Sept. 20, 2017), and wrote some of the best news employers have heard in a long while post-ADAAA. Specifically, the Seventh Circuit held that while the FMLA is the federal law that controls the rights of eligible workers to take job-protected leave, the ADA, is an anti-discrimination statute, not a medical leave entitlement.” Id. at *1. In fact, the Seventh Circuit expressly declared what so many employers have long argued: “So defined, the term ‘reasonable accommodation’ is expressly limited to those measures that will enable the employee to work. An employee who needs long-term medical leave cannot work and thus is not a ‘qualified individual’ under the ADA.” Id. Reaffirming its prior decision in Byrne v. Avon Prods., Inc., 328 F.3d 379, 381 (7th Cir. 2003), the Seventh Circuit affirmed that “[a] multimonth leave of absence is beyond the scope of a reasonable accommodation under the ADA.” Id.
Mr. Severson worked in a physically demanding position that required lifting up to 50 pounds. He had on and off back problems that finally got bad enough that he needed time off from work. He requested and was granted FMLA without incident. Ultimately, he was scheduled for surgery, which was to occur at the end of his 12 weeks of FMLA. Right before his FMLA was to expire, he asked for an additional two (2) months of leave for the surgery and recovery. The employer denied his request; advised he would be terminated at the end of his FMLA, and invited him to reapply to work when he was cleared by his doctor. Mr. Severson did not reapply but did sue his employer under the ADA.
The Seventh Circuit focused on the definition of reasonable accommodation, which is one that permits a disabled employee to perform the essential functions of the position. A long-term leave of absence cannot be a reasonable accommodation, wrote the court, because it does not give a disabled individual the means to work; it excuses his not working. Id. at *4. Recognizing that a brief period of leave to deal with a medical condition could be a reasonable accommodation in some circumstances, such does not permit a medical leave spanning multiple months to be one. Extended leave does not permit the employee to perform the essential function of his job. To the contrary, the inability to work for a multi-month period removes a person from the class protected by the ADA. Id. at *4 (citing Byrne, 328 F.3d at 381).
The Seventh Circuit expressly rejected the EEOC’s argument that a long-term medical leave of absence should qualify as a reasonable accommodation when the leave is (1) a definite, time-limited span; (2) requested in advance; and (3) likely to enable the employee to perform the essential functions of the position when he or she returns. The Seventh Circuit did not agree that a reasonable accommodation need be an effective accommodation, and expressly rejected the notion that the duration of the leave is irrelevant so long as it is likely to permit the employee to return to his job when it is over. This would turn the ADA into a medical-leave statute, an open-ended extension of the FMLA which, the Seventh Circuit aptly noted, is an “untenable interpretation” of the term “reasonable accommodation.” Id. at *5.