by Marti Cardi, Esq. - Senior Compliance Consultant and Legal Counsel
& Gail Cohen, Esq. - Assistant General Counsel, Employment and Litigation
September 26, 2017
“How long of a leave of absence do I have to grant as an accommodation under the Americans with Disabilities Act?”
I get this question frequently. I have long advised that employers must consider a new or extended leave of absence as a possible accommodation. In assessing an employee’s ADA leave request, employers need to look at what the employee will be doing during that leave: Rehabilitative therapy? Trying new medications? Learning to work with an assistive device or a support animal? Maybe recovery from surgery or an injury?
The Equal Employment Opportunity Commission agrees with me – or rather, I have come to agree with the EEOC. EEOC Commissioner Chai Feldblum is often quoted as calling the ADA an “inadvertent leave law.” And indeed it is – the ADA was not designed to be job-protected medical leave of absence. Rather, the basic goal is to enable the disabled employee to work – with a reasonable workplace accommodation if needed. But for years, the Commission’s guidance has been that leave is a reasonable accommodation as long as it is of a (somewhat) definite duration and will enable the employee to perform his essential functions upon return to work.
The 7th Circuit Court of Appeals begs to differ. In a recent case, the court ruled that an employer did not fail to provide a reasonable accommodation when it denied an employee’s request for a 2-3 month continued leave of absence after exhaustion of FMLA.
The Facts. Raymond Severson worked for Heartland Woodcraft, Inc., a fabricator of retail display fixtures from 2006 to 2013. His position was physically demanding, often requiring him to lift 50 pounds or more. Raymond had a back problem that first manifested itself in 2005. During flare-ups, the condition made it difficult or impossible for Raymond to walk, bend, lift, sit, stand, move, and work.
Raymond had generally performed well and received promotions over the years but was having difficulty in his latest position. He met with management on June 5, 2013, and accepted a demotion to second-shift lead, but never commenced work in that position. Earlier the same day, Raymond wrenched his back at home exacerbating his back condition and was in obvious pain as a result. He left work after the meeting with managers and then requested continuous FMLA leave due to his back.
During his FMLA leave Raymond stayed in touch with Heartland’s HR representatives. He received periodic extensions of his leave based on medical reports that showed he had multiple herniated and bulging discs in his spine. In mid-August, after steroid treatments yielded little improvement, Raymond informed HR that he was going to have back surgery on August 27 – the last day of his FMLA entitlement – and would need 2-3 more months of leave as an ADA accommodation. Heartland denied this request but told Raymond he was welcome to reapply when he was able to return to work.
Raymond never reapplied for work. Instead, he chose to sue Heartland for failure to accommodate. Oh, Raymond! You should have taken a different path!
“The ADA is an antidiscrimination statute, not a medical-leave entitlement.” So says the 7th Circuit. After analyzing the relevant sections of the ADA, the court stated:
A “reasonable accommodation” is one that allows the disabled employee to “perform the essential functions of the employment position.” If the proposed accommodation does not make it possible for the employee to perform his job, then the employee is not a “qualified individual” as that term is defined in the ADA.
Simply put, an extended leave of absence does not give a disabled individual the means to work; it excuses his not working. [Citations omitted.]
A multimonth leave of absence is beyond the scope of a reasonable accommodation under the ADA.
The court acknowledged the possibility that a brief period of leave to deal with a medical condition could be a reasonable accommodation in some circumstances, such as occasional flare-ups of arthritis or lupus.
Intermittent 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, two of the examples listed in [the ADA]. But a medical leave spanning multiple months does not permit the employee to perform the essential functions of his job. [Citations omitted.]
Of interest and some degree of persuasion, the court compared the FMLA and the ADA as “leave of absence” statutes:
If, as the EEOC argues, employees are entitled to extended time off as a reasonable accommodation, the ADA is transformed into a medical-leave statute—in effect, an open-ended extension of the FMLA. That’s an untenable interpretation of the term “reasonable accommodation.”
So there we have it. According to the 7th Circuit, a leave of absence as an ADA accommodation is not reasonable if it is expected to last more than “a couple of weeks,” or if it will “span[ ] multiple months.”
Employers have some similar comfort from the 10th Circuit in the case Hwang v. Kansas State University (2014). In that case, the court ruled that a 6-month leave was not a reasonable accommodation:
It’s difficult to conceive how an employee’s absence for six months — an absence in which she could not work from home, part-time, or in any way in any place — could be consistent with discharging the essential functions of most any job in the national economy today. Even if it were, it is difficult to conceive when requiring so much latitude from an employer might qualify as a reasonable accommodation.
Other than these two decisions, we are not aware of any other federal appellate court that has addressed how long of a leave is a reasonable accommodation under the Amendments Act (ADAAA). [The 7th Circuit includes the states of Illinois, Indiana, and Wisconsin within in its jurisdiction; the 10th Circuit includes Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming.]
Employers, continue to tread softly and act wisely. Don’t throw caution to the wind just because one or two courts have issued a reasonable opinion. See our Pings below for recommendations on how to assess requests for leave under the ADA Amendments Act (ADAAA).
Severson v. Heartland Woodcraft, Inc. (7th Cir. Sept. 20, 2017)
Don’t ignore the possibility of leave as a reasonable accommodation. Nothing in the 7th Circuit’s ruling changes the employer’s obligation to consider more leave of absence as a reasonable accommodation following the exhaustion of other job-protected leaves such as FMLA or a company policy of allowing a set amount of medical leave. Any inflexible leave policy could still be an ADA violation. Read more on this topic at our blog post regarding an EEOC/Lowe’s $8.6 million consent decree.
Don’t forget the interactive process. Although the ADA does not require an employer to engage in the interactive process (check out footnote 1 in the Severson opinion), that is still the best way to ensure that you are fulfilling your ADA obligations to consider a reasonable accommodation upon request by a disabled employee.
Review the EEOC’s resource document on leave as an ADA accommodation. It is always a good idea to understand the EEOC’s thinking on a tough issue, and they have shared with us in their resource document, Employer-Provided Leave and the Americans with Disabilities Act, issued May 9, 2016.
If you are thinking of denying an ADA request for leave as an accommodation, consult with your employment counsel. Even in the 7th and 10th Circuits, this is still a tricky issue. And, the EEOC will likely reject this case in its own proceedings.
MATRIX CAN HELP! Matrix’s start-to-finish ADA Advantage management services can help you wrangle with tough issues like accommodation decisions, including leave assessment of leave of absence requests. You always retain the final decision whether and how to accommodate, but we manage the intake, medical assessment, interactive process, recordkeeping, follow-up, and more. Our expert team of ADA Specialist is at the ready with practical advice and expert guidance. To learn more, contact us at [email protected].