Don’t Get Too Excited That The 7th Circuit Says Extended Medical Leave Is Not An ADA Reasonable Accommodation
By Michael G. McClory - Bullard Law
September 29, 2017
Sometimes at Blog Central we ask ourselves, “Is it exhausting being right all the time?” We always answer in the same way: “YES, and actually, it is being ‘correct’ all the time, not ‘right.’”
Just last month The Bullard Edge correctly stated: “Blanket policies that inflexibly require termination after a set maximum leave period are likely to lead to liability on the ground that they violate the ADA’s requirement of an individualized interactive process regarding reasonable accommodation.”
Despite that clear statement, along comes the Seventh Circuit Court of Appeals with a decision that is likely to have some employers driving on the wrong side of the road. Specifically, in its September 20, 2017 decision in Severson v Heartland Woodcraft, the Seventh Circuit incorrectly held: “A multimonth leave of absence is beyond the scope of a reasonable accommodation under the ADA.” That is just not correct. A multimonth leave might be reasonable or it might not be reasonable. It all depends on the relevant facts in a given situation.
To be fair to the Seventh Circuit, all of the parties to the litigation asked the court to adopt legally flawed positions. After we summarize the underlying facts, we will look at the erroneous positions championed by the employee, the employer, and EEOC. Following that, The Bullard Edge will offer some practical observations for employers.
Underlying Facts, With Editorial
Sketchy Employee Backstory:
For performance reasons, Heartland Woodcraft demoted Severson from operations manager to a second-shift “lead” position. After being notified of the demotion, Severson requested FMLA leave related to back pain. Heartland granted the request and Severson ultimately took 12 weeks of protected FMLA leave.
Interactive Process? What Interactive Process?:
Heartland did everything right during Severson’s leave. It maintained regular contact with Severson. The duration of the needed leave apparently was not known. However, as Severson identified medical needs for the continuation of leave, Heartland granted it up to the full 12 weeks.
Two weeks before FMLA leave exhaustion, Severson told Heartland that he would be undergoing back surgery on the day that his leave entitlement was set to expire. Severson noted that the typical recovery time is two months and he requested additional leave for the recovery.
On the day before FMLA leave exhaustion, Heartland responded to this request by informing Severson that it would be terminating his employment when his leave entitlement expired. Heartland invited Severson to reapply for employment when he was cleared to work.
Cynical Lawsuit Filing:
Severson had the surgery and approximately three months later was released to return to work. Rather than apply for work with Heartland, Severson sued the company. He alleged that Heartland had violated the ADA by refusing to accommodate his disability.
As a practical matter, Severson’s decision to sue rather than apply for employment may have sunk his ship. Even if Heartland did not comply with its ADA obligations (no interactive process, no decision as to whether reasonable accommodation was possible without undue hardship), Severson could have reapplied for employment. If he had been hired, he would have been in the same position as if accommodation in the form of leave had been granted. Instead, Severson went straight to court. Given that he could have pursued employment, filing a lawsuit claiming he was denied employment seems very cynical.
Summary Judgment For Heartland Upheld On Appeal
In support of his failure to accommodate claim, Severson alleged that Heartland could have (1) offered additional leave, (2) transferred him to a vacant job, or (3) offered temporary light-duty. The second and third allegations were non-starters. Severson did not identify any vacant positions for which he was qualified and Heartland did not have a light duty program. Thus, the courts primarily focused only on the first of the alleged forms of accommodation.
The trial court granted summary judgment for Heartland. The court agreed with Heartland’s argument that none of the proposed accommodations were reasonable. Severson appealed to the Seventh Circuit.
A three-judge panel of the Seventh Circuit affirmed the summary judgment decision. According to the panel, additional medical leave is not a form of reasonable accommodation under the ADA because the “ADA is an antidiscrimination statute, not a medical-leave entitlement.” The appellate court’s explanation for this holding is unconvincing (at least to The Bullard Edge).
The Act forbids discrimination against a “qualified individual on the basis of disability.” Id. § 12112(a). A “qualified individual” with a disability is a person who, “with or without reasonable accommodation, can perform the essential functions of the employment position.” Id. § 12111(8). So defined, the term “reasonable accommodation” is expressly limited to those measures that will enable the employee to work. An employee who needs long-term medical leave cannot work and thus is not a “qualified individual” under the ADA.
The panel then summarized its conclusion: “A multimonth leave of absence is beyond the scope of a reasonable accommodation under the ADA.” Or, to put it another way, “an extended leave of absence does not give a disabled individual the means to work; it excuses his not working.”
Unless you are an employer within the Seventh Circuit, this opinion is too much of an outlier to be reliable.
EEOC Unhelpfully Insinuated Itself Into The Appeal
EEOC appeared in the case to argue on Severson’s behalf. The Seventh Circuit appeared appropriately annoyed by EEOC’s assessment of the law.
EEOC argued that long-term medical leave “should qualify as 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 functions of the job when he returns.”
This argument fails a basic ADA precept: accommodation requests are to be evaluated on a case by case basis in light of all of the relevant facts. EEOC’s argument does not call for consideration of all relevant facts. In particular, the Seventh Circuit observed that as argued by EEOC “the duration of the leave is irrelevant as long as it is likely to enable the employee to do his job when he returns.” Carried to its absurd lengths, EEOC’s argument would make a 20-year leave of absence reasonable if each of the three points was met (finite duration, requested in advance, and likely to succeed).
The Seventh Circuit accurately assailed EEOC’s argument for failing to appropriately account for time. Ironically, the appellate court has a related blind spot in stating that “a long-term leave of absence cannot be a reasonable accommodation.”
What is long-term?
The appellate court notes that a prior Seventh Circuit decision “leaves open the possibility that a brief period of leave to deal with a medical condition could be a reasonable accommodation in some circumstances.” That is absolutely correct. Unfortunately, the prior decision went on to make a distinction between leave for “a couple of days or even a couple of weeks” and leave “spanning multiple months.” The appellate court’s point is that the shorter period might be reasonable, but the longer period is never reasonable. Without a clear statutory cite, that is a risky argument (outside of the Seventh Circuit). Would a one-month leave be reasonable? What about a 40-day leave? The opinion offers no guidance.
The Severson decision has received lots of attention over the past nine days. Employee abuse of leave is rampant and an appellate court decision that offers a glimmer of relief is welcome.
However, as we said at the start, this is a decision that is likely to have some employers driving on the wrong side of the road. Because the Seventh Circuit does not offer guidance, it would be risky for a Human Resources department to incorporate this holding into its processes.
The ADA requires an individualized (case-by-case) assessment to evaluate whether a particular form of accommodation would be reasonable for an employer to provide to a particular employee, taking into account the job in question, the facts relevant to the employer, and the facts relevant to the employee. Adopting a blanket bar on multimonth leaves is not the kind of individualized assessment contemplated by ADA.
Engaging an employee in the interactive process does not obligate the employer to provide the requested accommodation (such as a multimonth leave extension). We do not have any factual information that sheds light on whether it would or would not have been reasonable for Heartland Woodcraft to grant Severson an extended leave of absence; it might have been reasonable or it might have presented an undue hardship. The best practice is to engage in the interactive process and determine whether it is or is not reasonable to grant the requested accommodation or some other form of accommodation. The Bullard Edge continues to be a strong believer in the power of a vigorous and thorough interactive process.
The Bullard Edge