What are my obligations to an employee who has taken the 12 weeks of FMLA leave but whose medical conditions nonetheless do not allow the employee to return to work? This is one of the more challenging questions in employment law. Employers in states that make up the 7th Circuit — Illinois, Indiana and Wisconsin — now have the benefit of favorable guidance on this issue.
Here’s the situation. Your employee, Polly Ester, has a medical condition that requires her to take time off of work. Polly is FMLA-eligible, and she completes and timely returns all required paperwork. You, as the good employer (and despite the significant inconvenience to your business), comply with your FMLA obligations and place Polly on unpaid leave.
Twelve weeks later, Polly advises you that she still can’t return to work and requests an “accommodation” of extended leave under the Americans with Disabilities Act. What does she need? More time off work — of an unknown duration, perhaps months. You look to the EEOC, and you learn that the EEOC “takes the position that compliance with the FMLA does not necessarily meet an employer’s obligation under the ADA.” What do you do? You don’t want Polly to sue you, but you need someone to perform Polly’s job function!
The September 2017 decision in Severson v. Heartland Woodcraft, Inc. now helps employers in the 7th Circuit answer that question. While employers may be required to provide days or a few weeks beyond the FMLA-required 12 weeks, it is now clear that employers are not required to provide long-term medical leave spanning months as an accommodation under the ADA. The court said that the Americans with Disabilities Act “is an anti-discrimination statute, not a medical leave entitlement” and ruled that a proposed accommodation of two to three months of leave was not reasonable under the ADA. “Simply put, an extended leave does not give a disabled individual the means to work; it excuses his not working.”
What does Severson mean for you? Polly’s request for long-term leave is “simply unacceptable as a matter of law.” Nonetheless, it is important to communicate with your employees on FMLA leave to address any potential issues upon their scheduled return.