When Is a Leave of Absence Not a Reasonable Accommodation?
In a recent decision, the U.S. 7th Circuit Court of Appeals (whose rulings apply to all Wisconsin employers) rejected the Equal Employment Opportunity Commission’s (EEOC) position that a long-term medical leave of absence should qualify as a reasonable accommodation. The court’s reasoning was based on its view that the Americans with Disabilities Act (ADA) is an antidiscrimination statute, not a medical leave entitlement.
Raymond Severson had been employed by Heartland Woodcraft since 2006. Before joining Heartland, he had suffered from back problems. In 2010, he was diagnosed with a condition that resulted in impaired functioning of his back as well as degenerative changes in his back, neck, and spinal cord. As a result, he would experience flare-ups from time to time that made it difficult— if not impossible—to walk, bend, lift, stand, sit, move, and work.
On June 5, 2013, Severson was demoted from an operations manager position to a second-shift “lead” position. The lead position required him to frequently lift material and products weighing 50 pounds or more. Earlier that same day, he had wrenched his back at home, and he left work early because of his pain. Thereafter, he requested and received Family and Medical Leave Act (FMLA) leave retroactive to June 5.
While on FMLA leave, Severson sporadically updated Heartland on his condition, including providing doctor’s notes stating that he had multiple herniated and bulging disks in his lumbar spine and that he was unable to return to work until further notice. On August 13, he informed Heartland that his condition had not improved and that he was scheduled for disk decompression surgery on August 27. Because the typical recovery period from disk decompression surgery is two months, he requested an extension of his medical leave beginning on August 27, which was also the date that his 12 weeks of FMLA leave was to expire.
On August 26, the day before his scheduled surgery, Heartland informed Severson that his employment would end the next day when his FMLA leave expired. He was invited to reapply with the company following his surgery, after he had been medically cleared to return to work.
Severson Files Suit
Severson’s surgery proceeded as planned. On October 17, he was released to return to work with a 20-pound lifting restriction. The restriction was removed on December 5, when he was cleared to return to work on an unrestricted basis. He then filed suit against Heartland, alleging that it violated the ADA by failing to accommodate his disability. He claimed that the company could have accommodated him in one of the three following ways:
- Granting him a two- or three-month leave of absence;
- Transferring him to a vacant job; or
- Offering him a temporary light-duty position with no heavy lifting.
Heartland asked the district court to dismiss the lawsuit. The district court granted the company’s request, which Severson then appealed to the 7th Circuit.
What the 7th Circuit Says
In the proceeding before the 7th Circuit, there was no dispute that Severson had a disability or that the ability to frequently lift 50 pounds or more was an essential function of the second-shift lead position. The parties also agreed that at the time he was terminated, Severson was unable to frequently lift 50 pounds or more. The issue in the case boiled down to whether Heartland failed to reasonably accommodate his disability.
The focus of the court’s attention was on the issue of whether a long-term leave of absence is a reasonable accommodation within the meaning of the ADA. The court began its analysis by looking at the ADA’s definition of “reasonable accommodation.” It noted that the definition states only what the term “may” include, rather than what it “must include” or “includes.”
The court held that a long-term leave of absence cannot be a reasonable accommodation. Quoting one of its previous decisions, it noted that not working isn’t a means to perform the job’s essential functions, and an extended leave of absence doesn’t give a disabled individual the means to work, but rather excuses his not working. Referencing language in some of its previous decisions, the court stated that an inability to do the job’s essential tasks means that a person isn’t “qualified” and the employer doesn’t have to excuse that inability to work. If an employee isn’t able to be at work, he can’t be a qualified individual.
The 7th Circuit then went on to muddy the waters somewhat. It stated that its previous decisions have left open the possibility that a brief period of leave to deal with a medical condition could be a reasonable accommodation in some circumstances. As an example, it noted that time off may be an appropriate accommodation for intermittent conditions. It noted that intermittent leave or a “short” leave of absence—for a couple of days or even a couple of weeks in appropriate circumstances— could be analogous to a part-time or modified work schedule, both of which are examples of reasonable accommodations set forth in the ADA.
Distinguishing intermittent leave or a short leave of absence from a medical leave spanning multiple months, the court noted that longer medical leave doesn’t permit the employee to perform the essential functions of his job. To the contrary, the inability to work for several months removes a person from the class protected by the ADA.
The court commented that long-term medical leave is the domain of the FMLA. It noted that the FMLA protects up to 12 weeks of medical leave, recognizing that employees will sometimes be unable to perform their job duties. By contrast, the court noted, the ADA applies only to those who can do the job.
In response to arguments raised by the EEOC in its “friend-of-the-court” brief, the 7th Circuit pointed out that according to the EEOC’s interpretation, the length of the leave doesn’t matter. Under that approach, the ADA would be transformed into a medical leave statute, which the court determined was an untenable interpretation of the term “reasonable accommodation.” As a result, the court upheld the district court’s grant of Heartland’s request for dismissal of the lawsuit. Severson v. Heartland Woodcraft, Inc., No. 15-3754 (7th Cir., Sept. 20, 2017).
Most employers are now familiar with the dual obligations under the FMLA and the ADA. Nevertheless, it’s difficult to navigate through situations where—after FMLA leave has been exhausted—an employee remains unable to return to work, particularly when it’s for a lengthy, indefinite period of time. This case suggests that to the extent that an employee remains off work on a continuous basis for longer than two weeks, you should be on firm ground in taking the position that he isn’t a qualified individual with a disability and is therefore not entitled to reasonable accommodations under the ADA.