This month the United States Supreme Court declined to review the Seventh Circuit Court of Appeals’ decision in Severson v. Heartland Woodcraft, Inc. The Plaintiff asked the Supreme Court to consider whether there is a per se rule that a finite leave of absence of more than one month (after the employee had exhausted his FMLA) cannot be a reasonable accommodation under 42 USC Section 12112, or does the question of whether such a leave is a reasonable accommodation turn on the facts of the case.

In Severson, the Seventh Circuit held that a multi-month leave of absence is beyond the scope of a reasonable accommodation under the ADA because a medical leave spanning multiple months does not permit the employee to perform the essential functions of his job. Because the Supreme Court declined the case, Severson is the law in the Seventh Circuit, which covers Illinois, Indiana, and Wisconsin. As such, it is not the law in every Circuit.

What Does This Mean for Business? The issue is what leave is required under the ADA separate from FMLA-qualifying leave. The United States Supreme Court did not elect to clarify that issue under the ADA for federal courts throughout the United States so that different federal courts may treat the issue differently. State courts may also take a different position under their state disability laws.

The EEOC takes the position that a long-term medical leave of absence should qualify as a reasonable accommodation when the leave is of a definite time-limited duration, requested in advance, and likely to enable the employee to perform the essential job functions when he returns. The EEOC also takes the position that policies that provide a defined leave of absence after which employment is not protected violate the ADA.

At this time, employers are advised not to have definite leave periods after which employment is automatically terminated. The employer should engage in the interactive process with each employee who requests extended leave. Additionally, employers are advised to consult with counsel on requests for extended leaves of absence. Because the law is still developing in this area and varies by jurisdiction, the proper course of action will depend on the facts.