Seventh Circuit Puts the Brakes on Never-ending Leave Under the ADA
Employers everywhere have been repeatedly warned not to automatically terminate employees who have exhausted their Family and Medical Leave Act (FMLA) leave. Instead, employers should first consider whether the employee might be entitled to some additional leave time as a reasonable accommodation under the Americans with Disabilities Act (ADA). But the key question for employers has always been how much additional leave time is reasonable.
According to the Seventh Circuit Court of Appeals (which covers employers in Indiana, Illinois, and Wisconsin) the answer to that question is not very much. In a recently decided case, the court was presented with circumstances in which an employee with a back condition had used up all of his FMLA leave and asked his employer to extend his leave for another two to three more months so that he could undergo and recover from back surgery. The employer denied the employee’s requested extension of leave and terminated his employment, telling the employee that he could reapply for open positions once he recovered. The employee then sued the employer, alleging that the employer had failed to reasonably accommodate his disability when it denied the extension of leave. The lower court found in favor of the employer and dismissed the employee’s lawsuit.
On appeal, the Seventh Circuit addressed the question of how much leave is a reasonable accommodation under the ADA and concluded that employers are not required to provide multiple months of additional leave to employees who have already exhausted their 12 weeks of FMLA leave. In doing so, the court noted that the ADA only requires employers to provide reasonable accommodations for a disability when doing so will allow the employee to continue working and stated that “[a]n employee who needs long-term medical leave cannot work” and, therefore, “is not a ‘qualified individual’ under the ADA.”
Further, according to the court, “an extended leave of absence does not give an [individual with a disability] the means to work; it excuses his not working.” Consequently, the court concluded that multiple-month leaves are not required as an accommodation under the ADA even if the leave is definite in length and is requested in advance of the need for leave. However, the court distinguished long-term, extended leaves from shorter periods of leave (e.g., days or weeks) with the court confirming that the latter can be reasonable accommodations under the ADA.
The Seventh Circuit’s decision is important because it is contrary to the Equal Employment Opportunity Commission’s (EEOC) position that long-term, extended medical leaves are reasonable accommodations so long as the leave is definite in time, is requested in advance, and will allow an employee to perform his or her job duties upon return from leave. In an explicit rejection of the EEOC’s guidance on leaves as reasonable accommodations, the Seventh Circuit stated that requiring employers to provide extended leave to individuals who cannot work would be “in effect, an open-ended extension of the FMLA” and would convert the ADA into a medical leave law rather than an anti-discrimination statute.
Although the Seventh Circuit’s decision is a boon for employers in Wisconsin, Illinois, and Indiana, other circuit courts of appeal have reached different conclusions regarding whether longer-term, extended leave is a reasonable accommodation under the ADA. Therefore, absent a decision by the Supreme Court, employers operating in multiple locations must be mindful of how courts in their locations are likely to view the reasonableness of extended leave. In all cases, employers should still evaluate each leave request individually and should use the interactive process to determine how much additional leave will be needed, whether the additional leave will allow the employee to return to work following the leave, and whether the additional leave can be provided without undue hardship to the employer.