How much leave from work is unreasonable under the ADA? [SPOILER ALERT: Not much]

The long and winding road - geograph.org.uk - 1124953That’s because, last week, a federal appellate court held that long-term medical leave is not a reasonable accommodation under the Americans with Disabilities Act.

12 weeks of FMLA plus 2-3 more months of leave.

The case is Severson v. Heartland Woodcraft, Inc., and you can read the Seventh Circuit’s opinion here. Below are the facts, which I’ve edited a bit so they read a little easier:

From 2006 to 2013, Raymond Severson worked for Heartland Woodcraft, Inc., a fabricator of retail display fixtures. The work was physically demanding. In early June 2013, Severson took a 12-week medical leave under the Family Medical Leave Act 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, but by then he had exhausted his FMLA entitlement. The company denied his request and terminated his employment, but 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 resume work, but Severson did not reapply. Instead he sued Heartland alleging that it had discriminated against him in violation of the Americans with Disabilities Act by failing to provide a reasonable accommodation—namely, a three-month leave of absence after his FMLA leave expired. 

Are those 2-3 months extra months, on top of 12 weeks of leave under the FMLA, a reasonable accommodation?

The answer is no (again, with a bit of editing):

The ADA is an antidiscrimination statute, not a medical-leave entitlement. The Act forbids discrimination against a “qualified individual on the basis of disability.” A “qualified individual” with a disability is a person who, “with or without reasonable accommodation, can perform the essential functions of the employment position.” 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….A multimonth leave of absence is beyond the scope of a reasonable accommodation under the ADA….Simply put, an extended leave of absence does not give a disabled individual the means to work; it excuses his not working.

That holds true even 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:

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. That’s an untenable interpretation of the term “reasonable accommodation.”

Now, don’t get it twisted. Some leave from work may be a reasonable accommodation.

The appellate court noted that “a brief period of leave to deal with a medical condition could be a reasonable accommodation in some circumstances…a couple of days or even a couple of weeks.”

How about FMLA itself? Is that a reasonable accommodation? Intermittently? Yes.

But, block leave? Doesn’t sound like it:

Long-term medical leave is the domain of the FMLA, which entitles covered employees “to a total of 12 workweeks of leave during any 12-month period . . . [b]ecause 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.”

So, where does this leave employers?

  1. If you operate in the Seventh Circuit, then you know that 2 months on top of 12 weeks of FMLA is per se unreasonable as an ADA accommodation. Elsewhere, your mileage may vary, especially if state or local laws lower the bar for what may be reasonable.
  2. A flexible work schedule or light duty following upon conclusion of FMLA leave may be reasonable under the ADA.
  3. And don’t fall into one of those traps for the unwary when it comes to ADA/FMLA overlap. For example, requiring an employee to certify that he or she is 100% healthy as a condition of returning to work may result in a 100% chance of losing a subsequent ADA/FMLA lawsuit.
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