Will the Supreme Court sip from the FMLA ‘Holy Grail’?

Lil jon Goblet.jpg

Image Credit: danielle_blue on Flickr (https://www.flickr.com/photos/82705783@N00/101958911) CC BY-SA 2.0, Link

Okayyyyyy!

Oh, hold up. Not that Holy Grail.

Back in September, the Seventh Circuit Court of Appeals gift-wrapped an FMLA opinion for local employers. I blogged about it here.

In Severson v. Heartland Woodcraft, Inc. (here), the Seventh Circuit held that “a multimonth leave of absence is beyond the scope of a reasonable accommodation under the [Americans with Disabilities Act].”

A few days off, maybe even a few weeks off, could be a reasonable accommodation. But, beyond that, fuggedaboudit.

My buddy, Jeff Nowak of FMLA Insights, eats, drinks, and sleeps FMLA. And, without hyperbole, he channeled Indiana Jones in this quote in Law360 about Severson:

“It gives us a road map,” said Jeff Nowak, the labor and employment practice co-chair at Franczek Radelet PC and author of the FMLA Insights blog. “When it comes to the issue of leave as a reasonable accommodation under the ADA, it’s as if we’ve been given the holy grail.” 

Ok, maybe a little exaggeration there. But, Severson is one of those cases that lawyers representing employers in the Seventh Circuit and otherwise will regularly cite in cases involving extended leaves of absence under the ADA.

Except, for how long?

That’s because Mr. Severson has petitioned the U.S. Supreme Court to review the Seventh Circuit’s decision. He is asking the Court to answer this question:

Is there a per se rule that a finite leave of absence of more than one month cannot be a “reasonable accommodation” under 42 U.S.C. § 12112, or does the question of whether such a leave is a “reasonable accommodation” turn on the facts of the case?

Ask, and ye shall receive? Probably not. According to uscourts.gov, “the Supreme Court agrees to hear about 100-150 of the more than 7,000 cases that it is asked to review each year.”

So, Jeff, if the odds play out as they should, please make sure to have someone from your office hand-deliver me a custom-made “FMLA Holy Grail” for me to use at SHRM18 in Chicago.  I’ll be the envy of every attendee. (Ok, I may have engaged in a little hyperbole there myself.)

In the meantime, Severson remains the law in the Seventh Circuit. Elsewhere, your mileage may vary.

“Doing What’s Right – Not Just What’s Legal”