An employer’s obligation to provide a leave of absence as a reasonable accommodation under the Americans with Disabilities Act (ADA) has been a thorny issue for decades, but over the last few years, guidance from the Equal Employment Opportunity Coalition (EEOC) combined with fairly consistent decisions from the EEOC and courts have led to a détente in the leave of absence world, albeit one bristling with tension. Today we consider Severson v. Heartland Woodcraft, Inc., No. 15-3754 (September 20, 2017), a new decision that is certain to disrupt this area of jurisprudence that was only recently beginning to feel somewhat settled.
Let’s take a step back and look at the key issues: to be covered by the ADA’s protections, an employee must be a “qualified individual with a disability.” A qualified individual is an employee who, with or without a reasonable accommodation, can perform the essential functions of the job. A leave of absence is, to be sure, a unique accommodation – it doesn’t allow the employee to perform the essential functions of their job during the period of accommodation. But, leave as an accommodation has been viewed as providing an employee with the time needed to become able to ultimately perform the essential functions of the job. This time is often used to obtain necessary medical treatment, heal from a surgery, or recuperate from an illness. If the employee can get past this first hurdle of being considered a “qualified individual,” the next inquiries are whether the leave of absence is a reasonable accommodation, and if so, whether it poses an undue hardship to the employer.
Over the last 10 years, we’ve seen the EEOC investigate employers who terminate employees without careful consideration of a leave of absence as an accommodation. Specifically, the EEOC has focused on “maximum leave” policies that terminate employees who have exhausted – or are not eligible for – FMLA leave, but for whom a leave of absence might provide the time needed to remedy or alleviate the condition enough to return to work. Many larger employers, eager to institute a consistent, nondiscriminatory policy, have been caught in this snag. The policies often provide for 12 weeks of leave, and some even include an automatic extension of an additional month or two, before the employee bumps up against the maximum leave wall, a finite limit whereupon they are terminated. The EEOC has consistently struck down policies like this, and they have led to extensive multi-million dollar consent decrees.
Prior courts have focused on the length of the requested accommodation. For example, in Hwang v. Kansas State University, the 10th Circuit court (analyzing the parallel law for recipients of federal funding, the Rehabilitation Act) held that while a brief absence can be reasonable, one of a longer, uncertain duration is not. The Court drew the line at six months, stating:
“It’s difficult to conceive how an employee’s absence for six months — an absence in which she could not work from home, part-time, or in any way in any place — could be consistent with discharging the essential functions of most any job in the national economy today. Even if it were, it is difficult to conceive when requiring so much latitude from an employer might qualify as a reasonable accommodation.”
Today’s analysis focuses on the 7th Circuit. The court in Severson v. Heartland Woodcraft, Inc. took a different tack. The court focused in on the initial inquiry – was the employee a “qualified individual with a disability”? Recognizing that a qualified individual with a disability is one who, with or without reasonable accommodation, can perform the essential functions of the job, the Court opined that the term “reasonable accommodation” is limited to those measures that will enable the employee to work. The Court went on to conclude that “an employee who needs long-term medical leave cannot work and thus is not a ‘qualified individual’ under the ADA.” In doing so, the Court relied largely upon Byrne v. Avon Prods., Inc., a case from 2003, issued prior to the ADA Amendments Act of 2008 that significantly expanded the definition of “disability.”
The court acknowledged that the precedent and its conclusion:
“leaves open the possibility that a brief period of leave to deal with a medical condition could be a reasonable accommodation in some circumstances…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…But a medical leave spanning multiple months does not permit the employee to perform the essential functions of his job. To the contrary, the ‘inability to work for a multi-month period removes a person from the class protected by the ADA.’”
Whether the court is considering whether the employee is “qualified” or whether the accommodation is “reasonable,” it’s clear that employers are not required to grant an indefinite or overly long leave of absence. But the Severson court narrows the parameters further, limiting leaves expressly to those that are considered “short” – potentially maxing out at 2 weeks. Neither the EEOC nor the 10th Circuit in Hwang have taken such a narrow view of leave as an accommodation.
While employers will no doubt welcome the curbing of an open-ended leave right that Severson brings – at least in the 7th Circuit – we caution employers against any dramatic changes in leave policies. The EEOC has been unequivocal about its position – and it clearly interprets the ADA as mandating a leave of absence as a reasonable accommodation in some circumstances. As it set forth in its Amicus brief in the Severson case, the EEOC interprets the ADA to require leave when it is of a definite, time-limited duration, is requested in advance, and is likely to enable the employee to perform essential job functions upon the employee’s return. And while the Severson court largely dismissed the EEOC’s interpretation calling it “untenable,” from a practical matter, it is the EEOC that will first receive a claim of disability discrimination. The EEOC has been unwavering in its interpretation, and a history of multi-million dollar consent decrees should continue to serve as a caution to employers. The interactive process remains a critical step when an employee requests an accommodation for a disability. Doing so will allow the employer to evaluate the employee’s abilities and job duties, and make a holistic assessment as to whether or not the employer is able to provide the accommodation – including, potentially, a leave of absence – that will enable the employee to get back to work.
For more in depth discussion and analysis on the issues surrounding leave of absence as an accommodation, be sure to check out Reed Group’s whitepaper, ADA Compliance Guidance: When Employers Must Provide Leave as an ADA Reasonable Accommodation.