Is Leave a Reasonable Accommodation?

Not according to the Seventh Circuit! Human Resource professionals are well aware of the challenges presented when an employee’s medical condition requires more time off than available to the employee under standard company leave or Family and Medical Leave Act policies. The critical questions in those situations are: 1) Does the employee’s condition qualify as a disability? 2) If so, must additional leave be provided as a “reasonable accommodation” under the Americans with Disabilities Act? 3) What if the need for additional leave involves extensive time off?

The Equal Employment Opportunity Commission and federal courts have also been struggling with these issues for years. Prior to 2016, the EEOC repeatedly insisted that leave was a form of reasonable accommodation but failed to provide any specific guidance to employers on the topic. Court decisions on the topic were all over the board – some holding that leave as long as one year was a “reasonable accommodation,” while others questioned whether a leave of absence even qualifies as a form of “accommodation.” Neither the EEOC nor the courts ever established a clear delineation of when leave must be granted as an accommodation or the maximum length of leave which would qualify as “reasonable.”

May, 2016 EEOC Guidance Requiring Leave as ADA Accommodation

In May of 2016, the EEOC finally issued a formal Guidance, entitled “Employer-Provided Leave and the Americans with Disabilities Act.” In the Guidance, the EEOC declared that an employer must consider providing unpaid leave to an employee with a disability “so long as it does not create an undue hardship.”

The EEOC acknowledged its futuristic interpretation of the ADA by declaring, “The purpose of the ADA’s reasonable accommodation obligation is to require employers to change the way things are customarily done.”

To the dismay of HR professionals, the 2016 EEOC Guidance still provided no clear guidelines on how much leave must be extended under the EEOC’s definition of “reasonable.” The EEOC simply repeated its prior mantra of requiring a “case by case, individualized assessment” of all factors. The EEOC further noted that policies which arbitrarily establish a maximum leave allotment are unlawful unless they allow for exceptions for reasonable accommodation needs.

The EEOC Guidance thus continued to present challenges, unresolved questions and potential legal exposure to employers in situations where an employee’s medical condition exceeded available company-sponsored leave.

Seventh Circuit Rejects EEOC Position on Leave

On September 20, 2017, the Seventh Circuit Court of Appeals, which covers the states of Wisconsin, Illinois and Indiana, issued a decision in Severson v. Heartland Woodcraft, No. 15-3754, (7th Cir. 2017) which rejected many of the EEOC’s directives in the May, 2016 EEOC Guidance.

In Severson, an employee went out on FMLA leave due to a non-work related back condition. The employee exhausted all 12 weeks of available FMLA leave. Near the end of his leave, the employee advised the company that he was scheduled to undergo back surgery on the final day of his leave. He said that the post-surgery recovery would require two to three months of additional time off before returning to work.

The employer replied that, for business reasons, it needed to fill the employee’s position, and therefore could not grant his request. The employer then terminated the employee following the end of his FMLA leave and invited the employee to reapply at the company when he was able to begin working again.

The employee was cleared to work three months after the FMLA expired. However, instead of reapplying, the employee filed a lawsuit, claiming that the company had violated the ADA by refusing to grant him additional leave as an accommodation.

The Seventh Circuit dismissed the employee’s claim, while rejecting the EEOC’s stance on leave as a reasonable accommodation. The Court declared that the definition of “reasonable accommodation” is “one that allows the disabled employee to perform the essential functions of the employment position.”

The Court held that “if the proposed accommodation does not make it possible for the employee to perform their job, then the employee is not a ‘qualified individual’ under the ADA.” Because a leave of absence does not “allow the employee to perform their essential functions,” a leave of absence, by definition, is not a “reasonable accommodation.”

To hold otherwise, according to the Court, would “transform the ADA into a medical-leave statute – in effect, an open-ended extension of the FMLA.” The Court held that such an interpretation would be “untenable.”

While firmly rejecting the principle aspects of the EEOC’s “leave as a reasonable accommodation” doctrine, the Seventh Circuit did not completely shut the door on all forms of accommodation leave. The Court held that there may be situations where “intermittent time off or a short leave of absence – say a couple of days or even a couple of weeks – may, in appropriate circumstances” qualify as a reasonable accommodation. The Court noted, however, that “the inability to work for a multi-month period” would not qualify as a reasonable accommodation.

Takeaways from the Severson Decision

The Severson decision is certainly a positive step in resolving some of the legal uncertainties surrounding ADA accommodation evaluations. However, employers must be cautious not to over-extend the decision in Severson. Many challenging issues remain.

• Some Leaves Still Recognized as “Reasonable” Under Severson. Although the Court initially declared that leaves of absence were “inconsistent” with the definition of “reasonable accommodation” (because they do not allow the employee to perform the essential functions of the job), the Court later noted that some leaves still could qualify as “reasonable accommodations.”

The Court did not explain the internal inconsistency in its holding, but it did indicate that the most it would consider to be “reasonable” would be “intermittent” time off or leave of up to a “couple weeks.”

Thus, HR professionals should not be rejecting all accommodation requests for leave. If the request is for intermittent time off, or for two or three weeks of leave, such a request may well be considered “reasonable,” even under Severson.

• Employees Located Outside the Seventh Circuit Are Not Covered by the Severson Decision. Federal courts covering states outside the Seventh Circuit jurisdiction have not, by and large, taken the same position as the Seventh Circuit. The majority currently appear to follow the EEOC’s May, 2016 Guidance. This is important for two reasons. First, because of the split among the federal courts, this issue is more than likely to end up before the U.S. Supreme Court. It is even possible that Severson could be the test case.

Second, employers who have employees located outside the Seventh Circuit jurisdiction must still comply with the applicable law in that jurisdiction, even if the employer’s headquarters are located in Wisconsin, Illinois or Indiana. Employers often find themselves in legal hot water by ignoring the differences in federal law interpretations covering different states.

• State Disability Discrimination Laws May Still Recognize Leave as a Reasonable Accommodation. Employers must also keep in mind that the Severson decision only applies to cases brought under the Americans with Disabilities Act. Nearly every state has a reciprocal state law that also requires employers to provide reasonable accommodations to disabled employees.

For example, the Wisconsin Fair Employment Act also requires employers to reasonably accommodate disabled employees. The ADA does not supersede the WFEA; Wisconsin employers must comply with both laws. Cases decided under the ADA, even those from the Seventh Circuit, do not modify the WFEA.

Cases interpreting the WFEA currently hold that leaves of absence can be a “reasonable accommodation” provided that they are not “indefinite.” Target Stores v. LIRC, 217 Wis 2d 1 (Ct. App. 1998), Schultz v. V&H Trucks, CR201102234 (LIRC 2015) and King v. City of Madison, CR200502359 (LIRC 2007).

Therefore, employers must always consider the application of any state accommodation laws before finalizing their employment decisions.

Bottom Line

The Severson decision provides significant clarification of ADA accommodation obligations for employers in Wisconsin, Illinois and Indiana. However, those employers should recognize that some forms of leave may still be considered to be a “reasonable accommodation” under Severson, that employees located outside the Seventh Circuit jurisdiction may still be governed by the EEOC May, 2016 Guidance and that state law may still require leave, even longer than the leave rejected in Severson, to be provided as a “reasonable accommodation.”

Copies of the Severson decision and the May, 2016 EEOC Guidance, and additional guidance or assistance about the ADA or “reasonable accommodations” may be obtained from the LCOJ Employment Team.

Written By:
Attorney Gregory A. Grobe