Seventh Circuit Breaks from the Pack in Holding That Long-Term Leave Is Not a Reasonable Accommodation Under the ADA
In a decision that will be celebrated by employers in the Seventh Circuit struggling with employee requests for post-Family Medical Leave Act (“FMLA”) leave as an accommodation under the American with Disabilities Act (“ADA”), the Seventh Circuit in Severson v. Heartland Woodcraft, Inc., 2017 U.S. App. LEXIS 18197 (7th Cir. Sept. 20, 2017), recently held that an employer did not violate the ADA by firing an employee instead of extending his leave after he exhausted all leave under the FMLA. This holding – finding that extended long-term leave is not a reasonable accommodation under the ADA – is not only contrary to the Equal Employment Opportunity Commission (“EEOC”)’s position regarding extended leave as a reasonable accommodation, but also conflicts with several other federal Circuit courts that had previously ruled on the same issue (holding that extended/post-FMLA leave can be a reasonable accommodation under the ADA).
In Severson, the plaintiff was diagnosed with back myelopathy, which negatively affected his back, neck, and spinal cord. While plaintiff generally could perform his duties without incident, he did experience several “flare ups” which made it difficult for him to walk, bend, lift, stand, and work. As a result of his disability, plaintiff injured his back and went on FMLA leave, with several continuations of leave, totaling 12 weeks, approved by defendant. After exhausting all FMLA leave, plaintiff informed defendant that he would undergo disc compression surgery and would require at least an additional two months of leave for recovery time. Instead of extending plaintiff’s leave, defendant informed plaintiff that his employment would terminate on the date that his FMLA leave expired.
In reaching its holding that leave for an extended period of time is not a reasonable accommodation under the ADA, the Seventh Circuit reaffirmed its analysis in an earlier case – Byrne v. Avon Prods., Inc. 328 F.3d 379 (7th Cir. 2003) – that a long-term leave of absence could not be a reasonable accommodation under the ADA. Although EEOC guidance “Employer-Provided Leave and the Americans with Disabilities Act” states that employers should consider long-term leaves of absence as reasonable accommodations, the Seventh Circuit disagreed, stating that such an interpretation was untenable and would transform the ADA into “a medical-leave statute – in effect, an open-ended extension of the FMLA.” Moreover, the Court in Severson stated that long-term medical leave does not enable an individual to perform the essential functions of the job and, therefore, cannot be considered a reasonable accommodation because at the time it is required the employee is not a qualified individual with a disability. Finally, the Court noted that the ADA only requires “reasonable accommodations” and not “effective accommodations”, finding the a request for extended leave is only the latter. Thus, the Seventh Circuit rejected plaintiff’s argument (which had been joined by the EEOC) that defendant should have granted him a reasonable accommodation of additional leave.
This case represents a stark deviation from both the EEOC’s guidance and the rulings of multiple other Circuit courts throughout the country setting forth that employers must evaluate requests for leave (including those extending beyond FMLA leave) under the ADA on a case-by-case basis to analyze whether granting the leave would be an undue hardship, so long as the request is not for indefinite leave. While this may change the way employers in the Seventh Circuit approach their analysis of leave as a reasonable accommodation under the ADA, employers should be careful not to over-extend this ruling:
- First, the Severson holding itself does not totally preclude any post-FMLA as an accommodation under the ADA. Indeed, the holding leaves open the possibility that leave spanning a few days or even a couple of weeks could be a reasonable accommodation.
- Second, some state and local laws governing disability discrimination and accommodation may have different language and standards that could result in a contrary decision. (And now, more than ever, state and local laws that are more restrictive than federal law are being passed on a regular basis.)
- Third, employers outside the Seventh Circuit should remain diligent in individually analyzing requests for extended leave as an ADA accommodation, particularly in jurisdictions that follow the EEOC’s guidance or where Circuits have expressly ruled contrary to Severson.
No matter what jurisdiction an employer operates in, it is always important for employers to communicate with employees regarding expiration of leave and expected return dates while the employee remains out on leave.