Today’s case is Severson v. Heartland Woodcraft, Inc., a case from the Seventh Circuit decided September 20, 2017. The blogosphere has lit up with it, and I thought I could add my own spin to it even though several bloggers have done a real nice job talking about it. As is usual, the case is divided into categories and they are: facts; court’s reasoning; and takeaways. Of course, the reader is free to focus on any or all of the sections. Before moving on, for Jewish readers, I want to wish them a happy and healthy new year, and if they are fasting, a good fast on Yom Kippur this Saturday.

I

Facts

From 2006 to 2013, the plaintiff worked for the defendant, a fabricator of retail display fixtures, in a physically demanding job. In June 2013, the plaintiff took a 12 week medical leave under the FMLA in order to deal with serious back pain. On the last day of his leave, he underwent back surgery, which required that he remain off work for another 2 to 3 months. He asked the defendant to continue his medical leave, but by then had exhausted all of his FMLA entitlement. Critically, 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, the plaintiff’s Dr. lifted all restrictions and cleared him to resume work, but the plaintiff did not reapply. Instead, he sued the defendant alleging discrimination for violating the ADA because the defendant did not provide the accommodation of a three month leave of absence beyond his FMLA leave. Plaintiff lost at the lower court level and appealed.

II

Court’s Reasoning

  1. The term, “reasonable accommodation” is expressly limited to those measures enabling the employee to work. An employee needing long-term medical leave cannot work and therefore, is not a qualified individual under the ADA.
  2. A multi-month leave of absence is beyond the scope of reasonable accommodation under the ADA.
  3. Under 42 U.S.C. §12111(9), a reasonable accommodation may include a variety of things. The statute’s use of the phrase “may include,” means that the concept of reasonable accommodation is flexible and the listed examples are illustrative.
  4. A reasonable accommodation is one allowing the employee with a disability to perform the essential functions of the employment position. If the proposed accommodation does not make it possible for the employee to perform a job, then the employee is not a qualified individual as defined by the ADA.
  5. Putting together the definitions of qualified and reasonable accommodation, leads to the conclusion that a long-term leave of absence is not a reasonable accommodation.
  6. Intermittent leave, a couple of days or even a couple of weeks, may, in appropriate circumstances, be similar to a part-time or modified work schedule, which are two of the examples listed in the statute. However, a medical leave spanning multiple months does not permit the employee to perform the essential functions of his job. In fact, the inability to work for multiple months removes a person from the class protected by the ADA, i.e. they are no longer qualified.
  7. Long-term medical leave is the domain of the FMLA, which entitles employee to a total of 12 weeks of leave during any 12 month period for taking care of an individual or family member’s serious health condition, but the ADA applies only to those who can do the essential functions of the job.
  8. The EEOC’s view that a long-term medical leave of absence qualifies as a reasonable accommodation where that leave: is of a definite time-limited duration; requested in advance; and likely to enable the employee to perform the position’s essential job functions when he returns simply doesn’t wash. It doesn’t wash because such an interpretation equates reasonable accommodation with effective accommodation; an approach rejected by the United States Supreme Court in US Airways, Inc. v. Barnett.
  9. Adopting the EEOC approach transforms the ADA into a medical leave statute by in effect becoming an open-ended extension of FMLA. That is not a tenable approach to the term reasonable accommodation.
  10. The plaintiff has the burden to prove that there were in fact vacant positions available at the time of his termination.
  11. An employer is not required to create a new job or strip a current job of its principal duties to accommodate an employee with a disability.
  12. The defendant did not have a policy of providing light-duty positions for employees suffering injuries on the job. While they did have an ad hoc system for temporary light duty assignments, the granting of such assignments were infrequent and generally lasted no longer than two days.

III

Takeaways:

  1. The critical fact here is that the plaintiff was invited to reapply when well but did not do so.
  2. If I am an employer, I would go very slow with respect to adopting this case as policy. It may or may not be the law once the Supreme Court gets a hold of it, but it is certainly bad preventive law. As a matter of preventive law, the interactive process is key. I also would evaluate the situation utilizing the Samper decision, which we discussed here, in order to see whether attendance was an essential function of the job.
  3. On the plaintiff’s side, early communication of leave needs to happen, and engaging in the interactive process is much preferred over waiting until the last possible minute to inform the employer of your leave needs.
  4. Under this decision, the plaintiff has the burden of proof to show that there were vacant positions available at the time of his termination. This also gets into preventive law with respect to how to deal with the mandatory reassignment issue. Interestingly enough, the Seventh Circuit has a very strong policy for mandatory reassignment, which we discussed here. So, especially in the Seventh Circuit, while a multiple leave of absence means that the person with a disability is no longer qualified for that position, you can’t forget about the Seventh Circuit’s view on mandatory reassignment.
  5. This is a specific rejection of the EEOC approach with respect to extending FMLA leave as a reasonable accommodation for a disability. Therefore, one wonders whether the EEOC will not seek an en banc rehearing. One also wonders if that fails if the EEOC would not seek an appeal to the United States Supreme Court. Regarding an appeal to the United States Supreme Court, the EEOC has not faired terribly well there, and the United States Supreme Court in employment matters has not been particularly friendly to persons with disabilities. So, one also wonders whether the EEOC, especially if a rehearing en banc is not successful, might not let the whole thing drop and focus on convincing other Circuits of their point of view.
  6. If you as an employer are going to adopt an inflexible FMLA leave policy, termination after 12 weeks of leave, then you want to be sure that prior to termination you evaluate whether that individual can perform the essential functions of the job with or without reasonable accommodations per the ADA even though the FMLA requires no reasonable accommodation analysis. You also want to make sure that you have fully evaluated any mandatory reassignment obligations existing in your Circuit before terminating.
  7. Inflexible leave policy is just bad preventive law.

2 Responses to Extended Leave as a Reasonable Accommodation: The Seventh Circuit View

Bill, I agree with you. I’m not sure other courts will agree with this panel decision, which in any event applies only in Illinois, Indiana, and Wisconsin. It will be interesting to see whether the EEOC gravitates to a position more like the panel’s once Janet Dhillon and Daniel Gade are confirmed to the EEOC.

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