Last month, we blogged about the groundbreaking case of Severson v. Heartland Woodcraft, Inc., which – at least for the 7th circuit –reigned in leave as an accommodation under the Americans with Disabilities Act (ADA), in contrast to the more forgiving guidance issued by the Equal Employment Opportunity Coalition (EEOC). To recap, the court in Severson concluded that an employee who needs long-term medical leave cannot work and thus is not a ‘qualified individual’ under the ADA.

We anticipated that the Severson case would have an impact on future decisions, and sure enough, just last week, the Court of Appeals in the 7th circuit issued a decision with a similar fact pattern in Golden v. Indianapolis Housing Agency, No. 17-1359 (7th Cir. 2017), relying upon the Severson case to reach its conclusion.  Here, the employee exhausted her FMLA undergoing treatment for breast cancer. Her physician described her condition as “ongoing” but provided no specific end date for her period of incapacity. After she was terminated, she filed suit claiming that her employer violated the ADA and the Rehabilitation Act (the ADA counterpart for programs receiving federal financial assistance). As in Severson, the court found that the employee was not considered a “qualified individual” because her need for long-term medical leave rendered her unable to work. The court noted its reliance upon Severson stating, “Severson requires us to hold that a request for six months of medical leave in addition to the twelve weeks required by the FMLA removes an employee from the protected class under the ADA and the Rehabilitation Act.”

While Severson is certainly having an immediate impact on the 7th circuit, we continue to caution employers against changing their policies in response. Unless the employee is located in the 7th circuit, prior precedent that is more generous to an employee’s need for leave as an accommodation is likely to come into play. And key to consider is that the EEOC has been clear about its position – it interprets the ADA as mandating a leave of absence as a reasonable accommodation in some circumstances. As an employer will recognize, it is EEOC that will first receive a claim of disability discrimination and its lengthy track record of multi-million dollar consent decrees should continue to serve as a caution. The interactive process remains a critical step when an employee requests leave as an accommodation for a disability.

For further insight and analysis on the issues surrounding leave of absence as an accommodation, don’t forget about Reed Group’s whitepaper, ADA Compliance Guidance: When Employers Must Provide Leave as an ADA Reasonable Accommodation.

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