The Labor Dish tackled leave as a reasonable accommodation in 2015 (When Is Enough Leave Enough). Based upon the law at that time, our post suggested that less than 6 months of leave is seldom enough and that more than 18 months is too much. But a 2017 decision from the Seventh Circuit totally restructures 2015 advice by affirming summary judgment for an employer who had denied post-FMLA leave.
Severson v. Heartland Woodcraft, Inc., 872 F.3d 476 (7th Cir. 2017), considered whether an employer violated the Americans with Disabilities Act (“ADA”) by failing to grant more leave. The facts are a commonplace scenario: Severson took 12 weeks of FMLA leave to deal with back issues but then needed surgery, which would require another 2-3 months of recovery time beyond the FMLA leave. His leave was denied and he was fired.
The Seventh Circuit’s opinion begins by challenging the concept that leave is a legally-mandated accommodation: an employee “who needs long-term medical leave cannot work and thus is not a ‘qualified individual’ under the ADA,” which only protects qualified individuals who can perform the essential functions of the job. Id. at 479. It concludes that “[a] multimonth leave of absence is beyond the scope of a reasonable accommodation under the ADA.”
Severson is a homerun for employers right? Not so fast.
First, Severson is controlling authority only for federal courts in the Seventh Circuit (Illinois, Indiana, and Wisconsin). It may have persuasive authority elsewhere but the EEOC’s 2016 guidance still states that leave is a reasonable accommodation, albeit without providing exact guidelines on permissible leave time (https://www.eeoc.gov/eeoc/publications/ada-leave.cfm). There is contrary case law elsewhere too:
- LaFlamme v. Rumford Hosp., 2015 WL 4139478, at *15-16 (D. Maine, July 9, 2015) (denying summary judgment to employer where employee requested 2 months of leave to deal with a back injury; jury would decide whether request was reasonable);
- Cleveland v. Fed. Express Corp., 83 Fed. Appx. 74, 79-80 (6th Cir. 2003) (denying summary judgment to employer and finding that fact issues existed as to whether request for 6 months of leave to deal with lupus constituted a reasonable accommodation);
- Nunes v. Wal-Mart Stores, Inc., 164 F.3d 1243, 1247 (9th Cir. 1999) (where employee needed 2 months of leave at the time she was terminated to deal with a fainting disorder, stating that “extended medical leave, or an extension of an existing leave period, may be a reasonable accommodation if it does not pose an undue hardship on the employer”); and
- Clayton v. Pioneer Bank, 2008 WL 5787472, at *16-17 (D. N.M. Dec, 31, 2008) (finding that employer violated ADA and that former employee’s request for 6 months of leave constituted a reasonable accommodation).
Second, Severson didn’t green light firing every employee after 12 weeks of FMLA leave. Instead, there is a limiting principle: “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” that qualifies as a reasonable accommodation. Thus, sound judgment will be needed: e.g., is a one month request too much?
Finally, employers still must engage in the ADA’s interactive process to determine the exact length of leave requested in addition to the other standard accommodation considerations such as are any other reasonable accommodations beyond leave available, is reassignment to a vacant position an option, does the company have a light-duty position to offer the employee, and would any of the requests impose an undue hardship.
Stay tuned to The Labor Dish for future updates on this recurring but difficult issue.