WORKPLACE LAW LOWDOWN | Seventh Circuit: ADA Is Not a Medical Leave Entitlement
One of the most difficult questions we receive as employment attorneys is how long of a leave of absence must be provided to a disabled employee.
The Seventh Circuit Court of Appeals recently ruled an employer was not required by the Americans with Disabilities Act (“ADA” or “Act”) to provide several months leave of absence to an employee who needed additional medical leave after exhausting Family and Medical Leave Act (“FMLA”) leave. The Court said, “[t]he ADA is an antidiscrimination statute, not a medical-leave entitlement. … An employee who needs long-term medical leave cannot work and thus is not a ‘qualified individual’ under the ADA.” (Emphasis in original.) Severson v. Heartland Woodcraft, Inc., No. 15-3754 (7th Cir. September 20, 2017).
Raymond Severson worked as a fabricator of retail display fixtures. The work was physically demanding. Severson had suffered back pain even before he commenced this employment and he continued to have flare-ups during his employment.
Severson was promoted to Operators Manager but performed poorly in this position. He was demoted from Operations Manager to Second-Shift “Lead.” He accepted the demotion, but never worked as a Lead. He had wrenched his back at home before reporting to work that day. He left work early and commenced a 12-week FMLA leave to deal with “serious back pain.”
Severson was scheduled for back surgery on the last day of his FMLA leave. He notified his employer and requested additional medical leave of two to three months to recover from surgery. The employer denied his request, but invited him to reapply when he was “medically cleared to work.” Severson did not reapply after he was cleared to return. He sued his employer for violating the ADA for declining his request for extended medical leave. The trial court dismissed his claim. The Seventh Circuit (covering Illinois, Indiana and Wisconsin) affirmed on appeal.
The Court’s opinion started with a review of the ADA’s statutory language. The Act protects “qualified individuals” with a disability who can perform the essential functions of the job with or without “reasonable accommodation.” The Act says reasonable accommodation may include:
“job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modification of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.” 42 USC § 12111(9)(B).
The Court observed that a reasonable accommodation is defined as one that allows the individual with a disability to perform his job. All of the examples listed in the Act are “measures that facilitate work.” Severson had not requested an accommodation that would facilitate his working. He had requested time off to recuperate from surgery. The Court noted that an extended leave of absence “does not give a disabled individual the means to work; it excuses his not working.”
The Court agreed that time off for conditions requiring intermittent, brief periods of absence “may, in appropriate circumstances, be analogous to a part-time or modified work schedule,” which are included in the list of examples, but a medical leave spanning multiple months does not allow the employee to perform the essential functions of his job. To the contrary, the inability to work for a multi-month period “removes a person from the class protected by the ADA.”
Severson is not binding on the Sixth Circuit Court of Appeals (covering Michigan, Ohio, Kentucky and Tennessee). There are some older Sixth Circuit cases that take the position that an employee who is unable to perform the essential functions of her job is not a qualified individual with a disability, so a medical leave is not required. The newer Sixth Circuit cases tend to follow the Equal Employment Opportunity Commission’s (“EEOC”) position that a medical leave of absence may be a required accommodation.
Severson is not binding on the EEOC which has a long-standing position that a medical leave of absence is a reasonable accommodation. The EEOC filed a “friend of court” brief in the Seventh Circuit in support of Severson’s appeal. Its brief appears to acknowledge that a medical leave of absence may not be a reasonable accommodation. In its brief, the EEOC asserted “[t]he district court misunderstood how a time-limited leave request, made in advance, should be analyzed. The court’s analysis would effectively rule out leave as a possible accommodation under the ADA. Such a categorical exclusion is at odds with the longstanding position of the EEOC.” Emphasis added.
The majority of the EEOC’s five Commissioners are still Obama appointees. President Trump’s nominees have not yet been confirmed by the Senate. It is unknown whether the new Commissioners will revise the EEOC’s position on this issue. In the meantime, since filing an EEOC charge is a prerequisite to filing an ADA lawsuit, the EEOC is expected to continue to take the position that the ADA requires as an accommodation a definite, time-limited medical leave of absence.
For guidance in responding to an employee who has requested a multi-month medical leave of absence, consult a member of our Workplace Law Group.