David A. McClurg, U.W. 1980, is an attorney with Petrie + Pettit S.C., Milwaukee, where he concentrates his practice on labor and employment law and litigation. He represented the employer in Severson v. Heartland Woodcraft.
In Severson v. Heartland Woodcraft, Heartland’s employee, Raymond Severson, alleged that Heartland violated the Americans with Disabilities Act (ADA) by denying his request for an additional two to three months of leave to undergo back surgery after he had exhausted three-months of FMLA leave on conservative treatment alternatives.
Heartland denied the request, because it needed to fill the employee’s second shift lead position, and believed it would only be able to find a competent replacement if it offered applicants a permanent position – but asked the employee to reapply once he recovered from his surgery.
Instead of reapplying, the employee sued, claiming that Heartland should have “accommodated” his disability by granting him the additional two to three months of job-protected leave.
A federal judge in Milwaukee dismissed the case, holding that a multimonth leave is not a “reasonable accommodation.”
The employee appealed, and in Severson v. Heartland Woodcraft, the U.S. Court of Appeals for the Seventh Circuit affirmed the dismissal, holding that “the term ‘reasonable accommodation’ is expressly limited to those measures that enable a person to work. An employee who needs long-term medical leave cannot work and thus is not a ‘qualified individual’ [subject to protection] under the ADA.”
The court went on to note that Severson’s position would transform the ADA into a “medical leave entitlement,” which it was never intended to be.
Petition and Brief to U.S. Supreme Court
With the aid of the University of Chicago Law School Supreme Court Clinic, Severson filed a petition for a writ of certiorari, requesting that the U.S. Supreme Court review the Seventh Circuit’s decision. They argued that the case was wrongly decided, that there is a “significant split” among the various Federal Circuit Courts on the issue of the reasonableness of extended leave as an accommodation under the ADA, and that this case presented an “ideal vehicle” for the Court to resolve that split.
Heartland Woodcraft filed a brief in opposition to the petition. Citing many of the same arguments and precedents raised before the Seventh Circuit – including a 2014 decision written by recently appointed Justice Neil Gorsuch when he was a Tenth Circuit judge – the brief argued that the Severson case was correctly decided, and that there is no serious conflict among the circuit courts on the issue of extended leave as a reasonable accommodation meriting the Supreme Court’s review.
On April 2, 2018, the Supreme Court issued an Order denying the Severson’s petition for certiorari, leaving intact the Seventh Circuit’s decision in favor of Heartland Woodcraft.
Considerations on the Order
The Court’s Order leaves intact the Seventh Circuit’s holding that “reasonable accommodation” is limited to measures that enable a person to work and, because employees needing long-term medical leave cannot work, they are not “qualified individuals” subject to protection under the ADA.
The Court’s Order arguably gives the Seventh Circuit’s decision greater weight in other areas of the country, where the issue of the reasonableness of leave as an accommodation under the ADA may come up. Here, in the states included within the Seventh Circuit, it is now absolutely clear that employees needing two or more months of leave in order to be able to return to work are not “qualified individuals with disabilities” subject to the protections afforded by the ADA.
However, the Wisconsin state courts have not addressed this question under the provisions of the Wisconsin Fair Employment Act, which also requires reasonable accommodation of disabilities. While employers will have a strong argument that the reasoning of the Seventh Circuit should also be applied in interpreting Wisconsin’s statutes and administrative rules requiring reasonable accommodation of disabilities, it remains possible that the state’s administrative agencies and courts could take a different position.
Questions also remain as to the reasonableness of requested leaves of less than two-month’s duration. Judge Diane Sykes, author of the Severson decision, suggested that leaves of “a couple of days or a couple of weeks” might be reasonable, but not “extended leaves.”
The reasonableness of requested leaves between two weeks and two months remains an open question, though one earlier Seventh Circuit case found a leave of four weeks to be a reasonable accommodation under the particular facts of that case.
Employers considering denial of requests for leaves of less than two months should be prepared to demonstrate, as an alternative to the argument that the requested leave is not a “reasonable accommodation,” that the requested leave would cause the employer “undue hardship.”.