A long-term leave of absence is not a reasonable accommodation under the Americans With Disabilities Act (“ADA”) , at least according to the Seventh Circuit. On September 20, 2017, the Seventh Circuit in Severson v. Heartland Woodcraft, Inc. held that an employee who needs a long term leave is not a qualified individual with a disability under the ADA.
The Severson v. Heartland Woodcraft, Inc. Employment Litigation Case
The Seventh Circuit reasoned that the ADA is an antidiscrimination statute, not a medical-leave entitlement. The ADA 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 Severson case involved a straightforward fact scenario. For seven years, Raymond Severson worked for Heartland Woodcraft, Inc., a fabricator of retail display fixtures. The work was physically demanding. In 2013, Severson took a 12-week medical leave under the Family Medical Leave Act (“FMLA”), 29 U.S.C. §§ 2601 et seq., to deal with serious back pain. On the last day of his leave, he underwent back surgery, which required that he remain off of work for another two or three months.
Severson asked Heartland to continue his medical leave for an additional three months, but by then he had exhausted his 12-week FMLA entitlement. The company denied his request and terminated his employment, but the company invited him to reapply when he was medically cleared to work.
About three months later, Severson’s doctor lifted all restrictions and cleared him to return to work, but Severson did not reapply. Instead, he sued Heartland alleging that it had discriminated against him in violation of the ADA by failing to provide a reasonable accommodation—namely, a three-month leave of absence after his FMLA leave expired.
There is no dispute that Severson had a disability or that at the time he was terminated, his disability made it impossible for him to lift heavy weights, which was an essential function of his job. The only issue in that case was whether the employer violated the ADA by failing to reasonably accommodate his disability.
The Seventh Circuit found no ADA violation
The ADA makes it unlawful for an employer to discriminate against a “qualified individual” on the basis of disability. § 12112(a). A “qualified individual” is “an individual who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.” § 12111(8).
The ADA contains a definition of “reasonable accommodation,” but it states what the term may include:
The term “reasonable accommodation” may include—
(A) making existing facilities used by employees readily accessible to and usable by individuals with disabilities; and
(B) job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.
42 U.S.C. § 12111(9).
The Seventh Circuit found that the use of the permissive phrase “may include”—rather than “must include” or “includes”—means that the concept of “reasonable accommodation” is flexible and the listed examples are illustrative. But, the baseline requirement found in the definition of “qualified individual” is concrete: A “reasonable accommodation” is one that allows the disabled employee to “perform the essential functions of the employment position.” § 12111(8). If the proposed accommodation does not make it possible for the employee to perform his job, then the employee is not a “qualified individual” as that term is defined in the ADA.
The terms “reasonable accommodation” and “qualified individual” are interlocking terms. Putting these terms together, the Seventh Circuit reasoned that a long-term leave of absence cannot be a reasonable accommodation. The Court cited to an earlier case wherein it had held, “[n]ot working is not a means to perform the job’s essential functions” and stated “[s]imply put, an extended leave of absence does not give a disabled individual the means to work; it excuses his not working… [a]n inability to do the job’s essential tasks means that one is not ‘qualified’; it does not mean that the employer must excuse the inability.”
The Severson decision left open the possibility that a brief period of leave to deal with a medical condition could be a reasonable accommodation in some circumstances, for example time off to accommodate an intermittent condition,. The Seventh Circuit stated “Intermittent time off or a short leave of absence—say, a couple of days or even a couple of weeks—may, in appropriate circumstances, be analogous to a part-time or modified work schedule, two of the examples listed in § 12111(9).” The Court distinguished this from a leave of absence:
“ … a medical leave spanning multiple months does not permit the employee to perform the essential functions of his job. To the contrary, the “[i]nability to work for a multi-month period removes a person from the class protected by the ADA.”
In distinguishing the ADA from the FLMA, the Court stated that long-term medical leave is the domain of the FMLA, which entitles covered employees to a total of 12 work-weeks of leave during any 12-month period because of a serious health condition that makes the employee unable to perform the functions of the position of such employee. The FMLA protects up to 12 weeks of medical leave, recognizing that employees will sometimes be unable to perform their job duties due to a serious health condition. In contrast, “the ADA applies only to those who can .do the job.”
The EEOC was not a party to this lawsuit, but filed an amicus curiae brief in support of its position 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 reasoned that under this argument, the duration of the leave is irrelevant as long as it is likely to enable the employee to do his job when he returns, which thereby equates “reasonable accommodation” with “effective accommodation,” an interpretation that the Supreme Court has rejected. In U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 400, 122 S.Ct. 1516 (2002), the Supreme Court stated:
In ordinary English the word “reasonable” does not mean “effective.” It is the word “accommodation,” not the word “reasonable,” that conveys the need for effectiveness. An ineffective “modification” or “adjustment” will not accommodate a disabled individual’s limitations. … Yet a demand for an effective accommodation could prove unreasonable.
Thus, the effectiveness is a necessary but not sufficient condition for a reasonable accommodation under the ADA.
The Seventh Circuit also took issue with the EEOC’s interpretation that the length of the leave does not matter. It determined that if, as the EEOC argues, employees are entitled to extended time off as a reasonable accommodation, the ADA is transformed into a medical-leave statute—in effect, an open-ended extension of the FMLA, which is an untenable interpretation of the term “reasonable accommodation.”
Employers should still take caution before applying the Seventh Circuit’s decision as a blanket protection for terming employees who request medical leave exceeding twelve weeks.
The EEOC will undoubtedly continue to assert its position that long-term medical leave of absence qualifies as a reasonable accommodation provided certain conditions are met. While the Seventh Circuit is persuasive on a national level in the employment law arena, other courts may follow the EEOC’s argument, or at least find ways in which to hold that the leave of absence was a reasonable accommodation on a fact-based case by case inquiry.
Please contact Kristin Tauras at McKenna Storer for questions about this case or any other employment law litigation questions or concerns.
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