The United States Equal Employment Opportunity Commission (EEOC) has consistently maintained that leaves of absence should be considered as a form of reasonable accommodation under the Americans with Disabilities Act (ADA). In support of that position, the EEOC recently filed a lawsuit against the Blood Bank of Hawaii, contending that its “rigid maximum leave policy” inappropriately violated employees’ rights. The policy provides that employees with disabilities who utilize all of their FMLA leave may not be granted a leave of absence as a reasonable accommodation and further provides that employees returning from leave are required to demonstrate that they have no limitations on their future performance. In its complaint against the Blood Bank of Hawaii, the EEOC alleged that “[e]mployees should never be terminated or forced to resign simply because they need additional leave for their disabilities.”
The tension between an employer’s need to staff a position during an employee’s leave and a disabled employee’s need for accommodation presents a formidable challenge. While it is never a good idea for an employment policy to contain a provision that an employee who exhausts FMLA leave will immediately be terminated or for an employer to require that an employee return from leave with no restrictions, it is evident that an appropriate balance needs to be achieved.
Recognizing this tension, the United States 7th Circuit Court of Appeals recently issued an opinion that is instructive on this issue. In the case of Severson v. Heartland Woodcraft, Inc., an employee held the physically demanding position of fabricating retail display fixtures. He took a 12-week FMLA leave in order to receive treatment for serious back pain. On the last day of his leave, he underwent back surgery which required that he remain away from work for another two or three months. His employer denied his request for additional medical leave and terminated his employment, inviting him to reapply for his position when he was medically cleared for work. Three months later, he received medical clearance, but rather than reapplying for his position, he filed suit alleging that his employer had failed to reasonably accommodate his disability in violation of the ADA.
The district court awarded judgment in favor of the employer, and the 7th Circuit affirmed, stating that “[t]he ADA is an antidiscrimination statute, not a medical-leave entitlement.” The ADA forbids discrimination against a “qualified individual on the basis of disability,” defined as a person who, “with or without reasonable accommodation, can perform the essential functions of the employment position.” The Court reasoned that “reasonable accommodation” is expressly limited to those measures that will enable the employee to work” and that “[a]n employee who needs long-term medical leave cannot work and thus is not a ‘qualified individual’ under the ADA.” The Court concluded that “[s]imply put, an extended leave of absence does not give a disabled individual the means to work; it excuses his not working.”
The Court specifically rejected the EEOC’s argument that a long-term medical leave of absence should qualify as a reasonable accommodation when the leave is (1) of a definite, time-limited duration; (2) requested in advance; and (3) likely to enable the employee to perform the essential functions of his or her job when the employee returns to work. That being said, the Court recognized that a brief period of leave to deal with a medical condition could be a reasonable accommodation in some circumstances if it is analogous to a part-time or modified work schedule. Reassignment to a vacant position may be a reasonable accommodation. The key is that the employee must be able to perform the essential functions of his or her job during the leave. An employer is not required to create a new position or to strip a current position of its principal duties in order to accommodate a disabled employee.
In its Strategic Enforcement Plan, the EEOC has indicated that it is targeting inflexible leave policies as being in violation of the ADA. With that in mind, employers would be well advised to review their managerial training and employment policies to ensure that they do not disseminate or enforce a policy that an employee who exhausts FMLA leave will automatically be terminated, with no exceptions. Employers must always perform a reasonable accommodation analysis in considering whether an employee on leave can perform the essential functions of any vacant position for which he or she is qualified. This process should continue throughout the leave, with the elimination of any requirement that the employee returns to work without any restrictions.