In Severson v. Heartland Woodcraft, the U.S. Court of Appeals for the Seventh Circuit recently held that two to three months of extended leave beyond the 12 weeks of leave guaranteed by the Family and Medical Leave Act (FMLA) was not a reasonable accommodation for an employee with a nonwork-related back injury who was seeking time off to undergo back surgery.
David A. McClurg, U.W. 1980, is an attorney with PETRIE + PETTIT, Milwaukee, where he concentrates his practice on labor and employment law and litigation.
Because the employer needed to fill the employee’s second shift lead position, and believed it would only be able to find a competent replacement if it offered applicants a permanent position, the request for additional leave was denied, and the employee was asked to reapply for available positions once he recovered from his surgery. Instead of reapplying, the employee sued, claiming that the employer failed to “accommodate” his disability by denying him the additional two to three month leave.
In 2003, the Seventh Circuit stated in Byrne v. Avon Products that the “inability to work for a multi-month period removes a person from the class protected by the Americans with Disabilities Act (ADA).” Relying on Byrne, the U.S. District Court for the Eastern District of Wisconsin, in the underlying Severson decision, granted the employer’s motion for summary judgment and dismissed the employee’s reasonable accommodation claim, setting up the recent appeal to the Seventh Circuit.
The Equal Employment Opportunity Commission (EEOC) joined the appeal that followed, arguing that any request for leave of a “definite duration” that will allow the employee to return to work must be considered “reasonable,” and that such requests can be denied only if the employer can carry the (extremely difficult) burden of proving that the leave would cause “undue hardship.”
The EEOC argued that:
- Byrne was distinguishable because denial of leave in that case was justified based on the fact that the employee there requested leave only after having been absent from work for more than two months; and
- that the language in Bryne about “multi-month leaves” was actually dicta that should be overruled because an employee can be considered a “qualified individual with a disability” even if he needs multiple months of leave in order to be able to get back to work.
The Seventh Circuit’s Decision
On Sept. 20, 2017, Judge Diane Sykes, writing for a unanimous panel, which also included Judge Frank Easterbrook, author of the Bryne decision, and Chief Judge Diane Wood, issued a decision affirming dismissal of the employee’s action, and pointedly reaffirming the Court’s holding in Byrne that, although a brief period of leave (“a couple of days or even a couple of weeks”) may sometimes be a reasonable accommodation under the ADA, “the term ‘reasonable accommodation’ is expressly limited to those measures that enable a person to work. An employee who needs long-term medical leave cannot work and thus is not a ‘qualified individual’ under the ADA.” The Court went on to note that the EEOC’s position would transform the ADA into a “medical leave entitlement” – which it was never intended to be.
The employee’s attorneys and the EEOC argued that an extended leave of a “definite and time-limited duration” should be considered a “reasonable accommodation” because it would be “effective” in allowing the employee to (eventually) perform the essential functions of his job. The Court rejected this approach, and instead agreed with the employer’s position, based on the U.S. Supreme Court’s response to this same argument in U.S. Airways v. Barnett, that “in ordinary English, the word ‘reasonable’ does not mean ‘effective.’ It is the word ‘accommodation,’ not the word ‘reasonable,’ that conveys the need for effectiveness. … An effective accommodation could prove unreasonable.”
Although the Severson Court seemed to suggest that requested leaves of more than two weeks might not be “reasonable accommodations,” employers should be wary. In Haschmann v. Time Warner Entertainment, a case mentioned in the decision, another panel of the court found that a request for leave of two to four weeks should have been deemed a request for “reasonable accommodation.”
Severson makes it clear that an employee requiring a leave of two months or longer will notbe considered a “qualified individual with disability” subject to protection under the ADA. However, Haschmann suggests that a leave of two to four weeks should be deemed a “reasonable accommodation.” What about leaves of four to seven weeks?
Future litigants will inevitably argue that the repeated references in Bryne and Severson to “multi-month” leaves as not being “reasonable accommodations” suggest that any request for a leave of less than eight weeks should be considered “reasonable.” While it is doubtful the panel that decided Severson would agree, this issue will await resolution in future litigation.
The Severson decision also has significant national implications because the Seventh Circuit is the first federal circuit court to establish a “bright-line” test for periods of leave that will not be considered as reasonable accommodations based on the theory that “an employee who needs long-term medical leave cannot work and thus is not a ‘qualified individual’ under the ADA.” (This is probably why the EEOC filed an amicus brief in this action.) However, the Third, Fourth, Tenth, and Eleventh Circuits have similarly held that “reasonable accommodations” are those which “presently or in the immediate future” enable the employee to perform the essential functions of the job.
It is likely that these courts, and perhaps others, if presented with the issue, will follow the Seventh Circuit’s lead in holding that multi-month leaves of absence are not reasonable accommodations under the ADA.