Executive Summary: When an employee seeks leave as an accommodation for a disability under the Americans with Disabilities Act (ADA), the decision regarding whether to grant or deny the request can be challenging. Employers must look closely at the particular circumstances of every case in order to determine whether the amount of leave requested can be provided to the employee without causing undue hardship to the employer’s business. The fact-intensive nature of this decision makes predicting the length of leave that an employer must provide to an employee difficult, and employers do not know whether their decision will later be second-guessed by a court. Notably, however, a recent decision by the Seventh Circuit Court of Appeals alleviates this challenge for employers in Wisconsin, Illinois, and Indiana. In Severson v. Heartland Woodcraft, Inc., 2017 U.S. App. LEXIS 18197 (7th Cir. Wis. Sept. 20, 2017), the court adopted a bright-line rule instead of using the typical fact-intensive analysis to evaluate whether a leave request constitutes a reasonable accommodation. The Severson court held that long-term leave is never required as an accommodation because an employee who needs extended leave is not a “qualified individual” under the ADA.
Employers are familiar with the 12-weeks of job-protected leave to which an employee is entitled for his or her own serious health condition under the FMLA. However, what is required when employees inform their employer that they cannot return to work on the day that their FMLA leave expires is less clear.
Employers must ordinarily provide some additional leave if the employee provides documentation that he or she will be able to return to work on a specific future date that is only a few weeks – or even a few months or longer – away, unless the additional time requested causes the employer an undue hardship. Since an employer’s obligation to provide leave is not defined, any decision to deny or continue to provide leave should be made cautiously.
A Recent Decision Takes a Different Approach
The recent decision by the Seventh Circuit Court of Appeals in Severson eliminated this dilemma for some employers by holding that employees who need extended leave are not “qualified individuals” under the ADA.
As defined under the ADA, a “qualified individual” is any person “who, with or without [a] reasonable accommodation, can perform the essential functions” of his or her position. 42 U.S.C.S. § 12111(8). If an employee is not a qualified individual, then the employer is not required to provide any accommodation at all. Thus, under the Seventh Circuit opinion, long-term leave is never required as an accommodation.
In the Seventh Circuit case, Severson sought an additional three months of leave after he exhausted FMLA leave in order to recover from a back injury that constituted a disability. The Seventh Circuit affirmed the district court’s holding that Heartland Woodcraft, Inc. did not violate the ADA when it terminated Severson’s employment rather than granting him the three-month leave he had requested. In doing so, the court rejected the EEOC’s position in the case. Instead of considering whether the defined, three-month period was reasonable, the court found that “a long-term leave of absence cannot be a reasonable accommodation” because an employee unable to work for a long period is unable to perform the essential functions of his or her position.
This bright-line approach is a welcome relief for employers affected by the decision. However, not all courts take a similar approach. The rule in the Seventh Circuit is that an employee must be able to attend work (at least in the near future) in order to constitute a “qualified individual” under the ADA, but employers in other Circuits may be required to grant extended leave in some situations.
The ADA provides several examples of a “reasonable accommodation” and specifically references “job restructuring, part-time or modified work schedules,… and similar accommodations for individuals with disabilities,” and most courts find that this definition includes extended leave in at least some circumstances. Most courts refuse to suggest a length of leave that is presumptively unreasonable – leaving employers with little guidance regarding how to handle long-term leave requests made by employees. The Seventh Circuit’s approach is clearly preferable for its clarity, and perhaps, if the right case is presented, the Supreme Court will eventually weigh in to determine which approach should be applied.
Although the Seventh Circuit has clarified that long-term leave is not required under the ADA, employers within the Seventh Circuit should be mindful that they may still have an obligation under the ADA to provide short-term or intermittent leave as an accommodation. In other Circuits, long periods of leave may be required in some circumstances. All employers, regardless of location, should be aware that the law in this area is evolving. Therefore, evaluating each leave request received on a case-by-case basis is essential. Employers who refuse to provide the leave an employee has requested must be able to provide evidence that they engaged in the interactive process with the employee and that providing the requested leave would create an undue hardship.