Seventh Circuit Ruling on Leaves of Absence as an ADA Reasonable Accommodation

On September 20, 2017, in a rejection of the EEOC’s May 2016 guidance[1] regarding extended leaves as reasonable accommodations under the Americans with Disabilities Act, the federal Seventh Circuit Court of Appeals held that employers are not required to provide a long-term leave of absence, meaning a leave beyond the leave that the employer already provides to employees pursuant to its policies and the FMLA, to an employee as a reasonable accommodation.  Raymond Severson v. Heartland Woodcraft, Inc., No. 15-3754, decided September 20, 2017.  The Seventh Circuit encompasses the states of Illinois, Indiana and Wisconsin.

In Severson, the plaintiff was a long time employee of this West Bend, Wisconsin company who was unable to return to work at the end of his 12-week FMLA leave.  The company did not have a policy that allowed employees to take additional leave time.  Nonetheless, the employee asked his employer to grant him an additional three months of medical leave and this request was denied.  The company terminated the employee but invited him to reapply when he was medically cleared to return to work.  The employee was cleared to return to work about three months later but sued the company, alleging a violation of the Americans with Disabilities Act.  The EEOC supported the employee’s case, arguing—consistent with its May 2016 guidance—“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 job functions when he returns.”

The Seventh Circuit disagreed, stating that under the EEOC’s interpretation, the ADA is transformed from an antidiscrimination statute to a medical-leave statute.   The Court held that “[a]n employee who needs long-term medical leave cannot work and thus is not a ‘qualified individual’ under the ADA.” The Court explained that a reasonable accommodation is intended to allow an employee with a disability to perform the essential functions of his or her position, meaning that the purpose of a reasonable accommodation is to give an employee ‘the means to work,” and is not meant to excuse the employee from work.  The Court acknowledged that a “short leave of absence,” which it defined as up to “a couple of weeks” may, “in appropriate circumstances” be a reasonable accommodation.

The Court’s opinion also provided guidance on two other frequently requested forms of a reasonable accommodation:  reassignment to a vacant position or a light-duty position.  The Seventh Circuit reminded employers and employees that while reassignment to a vacant position may be a reasonable accommodation, the employee has the burden to prove that vacant positions were available at the time of his/her termination.  In addition, an employer is not required to create a new position or assign an employee with a disability to a job filled by another employee (and re-assigning that other employee to other duties) as an accommodation.  With respect to light-duty positions, if an employer has a policy of creating light-duty positions for employees who suffer work-related injuries, then the employer must apply that policy to an employee with a disability who is not occupationally injured, unless the employer can establish undue hardship.

What does this mean for employers?  Employers should review their employee handbooks carefully with respect to their leave policies and make sure they understand how much leave they allow employees to take under the FMLA and for other reasons.  Employers must also determine whether they have a policy of creating light-duty positions for employees who suffer a work-related injury.  Employers must first and foremost comply with the FMLA and their leave/light-duty policies:

If an employer provides 12 weeks of time off for a medical leave but also provides leave time to employees for other, non-medical reasons, then an employee requesting additional leave time for a medical reason will likely be eligible for the additional leave time, to the extent that the time would be available to the employee for non-medical reasons.

For employers in Illinois, Indiana and Wisconsin, if the employer only provides 12 weeks of leave time to employees, then an employee requesting additional time off as a reasonable accommodation may not be entitled to it, if the amount of leave requested exceeds 14 days.

If an employee with a disability not related to an on-the-job injury requests a light-duty position as an accommodation, and the employer has a policy of creating a light-duty position for employees who sustain an on the job injury, then a light-duty position would need to be created as a reasonable accommodation, unless the employer can establish that this accommodation would be an undue hardship on the employer.

As you can see, complying with the Americans with Disabilities Act is difficult and the law in this area continues to evolve.  We recommend that you consult with your attorney when you are presented with an employee request for an accommodation.

[1] On May 9, 2016, the U.S. Equal Employment Opportunity Commission issued its guidance entitled “Employer-Provided Leave and the Americans with Disabilities Act.”  In that guidance, the EEOC stated, among other things, that employers “must consider providing unpaid leave to an employee with a disability . . . even when:

  • the employer does not offer leave an employee benefit;
  • the employee is not eligible for leave under the employer’s policy; or
  • the employee has exhausted the leave the employer provides as a benefit . . .”
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