From the desk of Tracie DeFreitas, M.S., Principal Consultant — ADA Specialist
The Equal Employment Opportunity Commission (EEOC) has long held the position that employers must consider providing leave as a reasonable accommodation, if it does not create an undue hardship. This position is made clear in the agency’s 2002 enforcement guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act (ADA) and more recently in their May 2016 resource document, Employer-Provided Leave and the ADA. The objective of providing leave as an accommodation is to enable employees with disabilities to take job-protected time off to manage their medical impairments and ultimately return to work to perform essential job duties. There is no pre-determined duration of leave time that is required to be granted under the ADA because the ADA is not a leave law.
JAN receives many contacts from employers who understand that leave is an accommodation that must be considered, but who are faced with situations involving employees who have already taken several months of leave under the Family and Medical Leave Act (FMLA), a similar state leave law, or an employer’s leave policy, and still cannot return to work. According to EEOC, employers must consider extending leave beyond the maximum leave allowed by leave laws, and employer leave policies, when additional leave is needed due to a disability-related reason, and when an undue hardship will not result. In recent years, the EEOC has taken the position that inflexible leave policies that set a firm time limit for employees to be out on leave violate the ADA. As a result, a growing number of employers who have not engaged in the interactive process to determine if it is reasonable to extend leave beyond FMLA, or modify an inflexible leave policy to continue leave as a reasonable accommodation, have been met with a discrimination claim from EEOC.
Understanding Severson v. Heartland Woodcraft, Inc.
While the EEOC deems that extending leave can be a reasonable accommodation under the ADA, some courts disagree. The federal appeals court in the 7th Circuit is a noteworthy example. After the decision in Severson v. Heartland Woodcraft, Inc., No. 15-3754 (7th Cir. Sept. 20, 2017), ADA-related long-term leave requests are likely to be analyzed more conservatively by employers in Illinois, Indiana, and Wisconsin. Severson, a fabricator of retail display fixtures, was terminated after exhausting his FMLA entitlement and requesting a three month extension of leave as an accommodation to recover from back surgery. Heartland denied the request and encouraged Severson to reapply when he could work. The court awarded summary judgement to Heartland, asserting that an extended leave of absence is not a reasonable accommodation under the ADA.
Courts across the country have ruled on leave-related ADA issues in the past, many leaving extended leave in the realm of possible reasonable accommodations, but the 7th Circuit in Severson drew the line by deciding that, “A multimonth leave of absence is beyond the scope of a reasonable accommodation under the ADA” (Severson v. Heartland Woodcraft Inc., 7th Cir., Sept. 20, 2017). This decision was made on the basis that a reasonable accommodation must allow an employee to work. In the 7th Circuit’s opinion, a medical leave of absence spanning multiple months does not permit an employee to perform the essential functions of the job – ultimately rendering the employee unqualified. The court interpreted the request for extended leave to be an open-ended extension of the FMLA.
The Impact of the Severson Decision
Will the Severson decision impact how employers analyze requests for long-term leave under the ADA? The short answer is yes, the decision will likely influence leave-related ADA decisions made by employers in the 7th Circuit – IL, IN, and WI. However, keep in-mind, the Severson ruling did not define what constitutes an “extended medical leave.” While employers in this Circuit are advised by the court that a long-term leave request is not a reasonable accommodation under the ADA, the absence of parameters regarding what constitutes a long-term leave still leaves this type of accommodation request open to case-by-case analysis. The ruling does not mean that employers can simply deny extended leave requests without analyzing if the employee is a qualified individual with a disability and if the leave will pose a hardship.
Employers outside of the 7th Circuit should be careful not to over-extend this ruling because other Circuits have ruled in opposition to Severson, generally following the EEOC guidance on leave and the ADA. The Severson holding does not place limitations on extended leave requests as accommodation under the ADA in jurisdictions outside of the 7th Circuit. Also, some state and local disability discrimination and accommodation laws may require employers to consider long-term leave requests. The Court did not preclude intermittent time off or short leaves of absence of a few days or weeks as being reasonable. What this means for employers outside the 7th Circuit – continue to individually analyze requests for long-term leave as an ADA accommodation. Engage in the interactive process to gather information and make an informed decision about the reasonableness of each leave request.
Tips for Analyzing Leave Requests
- Analyze all accommodation requests for extended leave individually. Remember, the EEOC opposes the Severson decision and will not likely back down from its position that a long-term medical leave should qualify as a reasonable accommodation, under certain circumstances. When the leave is of a definite, time-limited duration, is requested in advance, and will enable the employee to perform essential job functions upon return to work, the accommodation may be required under ADA, barring undue hardship.
- Know the laws that apply in the jurisdictions in which you operate. Be informed about state and local laws governing leave and accommodation that may require long-term leave to be granted to qualified employees, as well as court rulings in your Circuit that can influence reasonable accommodation decisions under the ADA. Employers may address leave-related requests by applying various leave programs, including FMLA, Workers’ Compensation, employer leave policies, state and local leave requirements, and ADA.
- Gather specifics about the need for leave. After receiving a request for leave, gather information about the frequency of the need for leave (e.g., if intermittent), the expected duration of the need for leave (e.g., a few days, weeks, months), and the anticipated date of return to work. An anticipated date of return that establishes a definite, time-limited duration, although sometimes provisional, is particularly important and will assist the employer in analyzing if the leave request is reasonable.
- Factually assess undue hardship. It is useful to accurately and objectively document the impact of an employee’s absence on business operations, leaving feelings out of the analysis. It’s one thing to say that employee morale is low because Kenny hasn’t been to work in twelve weeks, but employee morale doesn’t factor in when assessing undue hardship. On the other hand, if Eric, Kyle, and Maria each have to repeatedly work ten hours or more of overtime each week Kenny is absent to meet production demands, then this is a fact to consider. For more information about undue hardship and leave, see Employer-Provided Leave and the Americans with Disabilities Act.
JAN receives daily questions related to leave and the ADA. Even with EEOC guidance, this remains a complex reasonable accommodation issue. If you have questions about this topic, please contact JAN to speak with a consultant.