Employers in the retail sector are constantly faced with the balancing act of relying on their workforce to operate a profitable business while also managing employees who are unable to work at full capacity due to an illness or disability. The patchwork of laws and regulations requiring employers to provide leave or accommodation can overlap with one another, creating uncertainty as to when employers can terminate sick or disabled employees. For example, it is a common scenario for an employee to exhaust his/her 12-week medical leave under the Family Medical Leave Act (“FMLA”) and then request additional leave as an accommodation under the Americans with Disabilities Act (“ADA”).
The U.S. Court of Appeals for the Seventh Circuit recently issued an opinion shedding some light on when leave constitutes reasonable accommodation under the ADA. In Severson v. Heartland Woodcraft, Inc., the Seventh Circuit addressed facts involving an employee, Severson, who was employed in a physically demanding role and took 12 weeks of medical leave under the FMLA to treat serious back pain issues. On the last day of his FMLA leave, he underwent back surgery, which required that he remain off of work for another two to three months on top of the 12-week leave he just exhausted. Severson requested to extend his medical leave so that he could recover from his surgery. However, the company denied his request, terminated his employment and invited Severson to re-apply for a job once he had recovered. Approximately three months later when Severson was lifted off all restrictions and cleared to resume work, he filed a lawsuit against his former employer claiming that the company discriminated against him in violation of the ADA by failing to provide the reasonable accommodation of a three-month leave of absence, among other alternative accommodations. The trial court granted summary judgment for the employer and Severson appealed to the Seventh Circuit.
The ADA prohibits discrimination against a “qualified individual on the basis of disability.” A “qualified individual” with a disability is a person who, “with or without reasonable accommodation, can perform the essential functions of the employment position.” The issue of liability in Severson turned on the question of whether a multi-month leave of absence following the expiration of FMLA leave was a reasonable accommodation under the ADA. The Seventh Circuit held it was not.
Although the definition of “reasonable accommodation” is flexible under the statute, the Court maintained that “[i]f 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.” In other words, a multi-month leave of absence is not reasonable because it “does not give a disabled individual the means to work; it excuses his not working.” The Court did, however, leave open the possibility that intermittent time off or a short leave of absence may be appropriate under the ADA, as such forms of leave may be analogous to a part-time or modified work schedule, both of which are identified as examples of reasonable accommodation under the statute.
Although the Seventh Circuit delivered a beneficial opinion to employers, employers must still exercise caution when making reasonable accommodation decisions involving long-term leave. The EEOC still maintains the position that multi-month leave is a form of reasonable accommodation under the ADA when the leave is (1) of a definite, time-limited duration, (2) requested in advance and (3) likely to enable the employee to perform essential job functions upon return. Indeed, the EEOC filed an amicus brief in Severson raising such arguments. Although the Seventh Circuit rejected the EEOC’s arguments as converting reasonable accommodation into “effective accommodation,” other circuits have reached differing opinions as to whether long-term leave could constitute a reasonable accommodation under the ADA. The Severson decision is significant because it provides clear direction in an historically confusing area. However, unless other courts adopt similar reasoning, employers in jurisdictions outside of the Seventh Circuit should continue to conduct individualized analyses and engage in the interactive process in determining the appropriateness of a medical leave request.