By: Melanie M. Dunajeski; Drewry Simmons Vornehm, LLP
For years, employers have struggled with providing employees leave as a reasonable accommodation under the Americans with Disabilities Act (ADA)-especially when an employee has already exhausted the generous leave provided under the Family Medical Leave Act (FMLA). The Seventh Circuit Court of Appeals (over the federal courts of Indiana, Illinois, and Wisconsin) has long disagreed with the EEOC’s guidance “Employer Provided Leave and the Americans with Disabilities Act” which states that employers should consider long term leaves of absence as reasonable accommodations, but recently took their position a step further to hold that leave for an extended period is not a required reasonable accommodation under the ADA. In Severenson v. Heartland Woodcraft, Inc., the employee had a back problem that was exacerbated by an injury. At the conclusion of a 12-week FMLA leave, employee notified employer that he would be undergoing back surgery and would need at least another three months off for recovery. Employer declined to provide this leave as a reasonable accommodation under the ADA and terminated employee’s employment, with an invitation to him to reapply when he was once again able to work. Employee did get his surgery, but instead of reapplying sued his employer for disability discrimination. In its opinion upholding the trial court’s ruling in favor of the employer, the Seventh Circuit went against the EEOC’s Guidance and precedent in other federal Circuit Courts of Appeal, and held that the ADA does not require an open-ended extension of the leave available under the FMLA. The Seventh Circuit held that the ADA is not a “medical leave statute”, and found that leave for an extended period of time is not a reasonable accommodation under the ADA. This case represents a substantial departure from the holdings in other Circuits that have adopted the EEOC Guidance that requires employers to evaluate employee leave requests on a case-by-case basis to determine whether grant of the leave would present a “substantial hardship” to the employer. The court also gave some idea of what it would consider reasonable with respect to leave as an accommodation: “[i]ntermittent time off or a short leave of absence—say, a couple of days or even a couple of weeks—may, in appropriate circumstances, be analogous to a part-time or modified work schedule…But a medical leave spanning multiple months does not permit the employee to perform the essential functions 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.” Significantly, only weeks after this September decision, the Seventh Circuit issued another decision buttressing this position. In Golden v. Indianapolis Housing Authority an employee facing expiration of a 12-week FMLA leave sought additional leave of an unspecified length, up to six months, for cancer treatment. The Authority granted an additional 4 weeks of leave, but terminated the employee when she was unable to return at that time. The Seventh Circuit found for the employer again- emphasizing that a multi-month leave of absence is “beyond the scope of reasonable accommodation under the ADA.”
What do these two cases mean for employers? First- note that if your employment relationship is not in Indiana, Illinois or Wisconsin this is not binding precedent for you. If you are in these states, the court’s guidance that a few days or weeks may be required under the ADA, but not a few months, will be very helpful to employers—including in handling requests for open ended leave. Note that leave may not be the only effective accommodation that you might be able to provide, and that the undue hardship analysis may still be a valid concern. Hence, even with these favorable holdings, every request for leave as an accommodation should still result in an individualized assessment to determine if it would be an effective accommodation.
Wondering what to do when an employee requests leave as an accommodation? Let us walk you through the process. Call one of the Employment Attorneys at Drewry Simmons Vornehm LLP.