Employers often encounter situations in which an employee is temporarily unable to work as a result of a disabling condition. Leave can often be granted under the employer’s existing policies providing for paid or unpaid sick leave, vacation or paid time off, personal leave, or medical leave required under the Family and Medical Leave Act.
However, employers face difficult decisions when the employee remains unable to work after exhausting leave available under these policies and the employer deems it vital to have the employee’s position filled quickly by a competent and permanent replacement. Although the Americans With Disabilities Act (ADA) does not require employers to grant leaves of absence for “indefinite” periods,1 most federal courts have held that additional “job-protected” leave is a reasonable accommodation required by the ADA if leave will allow the disabled employee to return to work in the “immediate” or “near” future.2
This places employers in the difficult position of deciding how much leave constitutes a reasonable accommodation required by the ADA and how much leave is too much to be considered reasonable. Potential liability for back pay, front pay, emotional distress damages, and attorney fees may exist if the employer denies a requested leave that is later determined to have been a reasonable accommodation required under the ADA.
Dave McClurg, U.W. 1980, is with Petrie + Pettit S.C., Milwaukee, and represents employers in wrongful termination, discrimination, retaliation, harassment, and OSHA and wage and hour violation matters. He also litigates trade secret and duty of loyalty claims and drafts and enforces noncompete and confidentiality agreements. He represented Heartland Woodcraft throughout the Severson litigation. He is an avid motorcyclist and flute player.
Employers can avoid liability for failing to provide an otherwise reasonable accommodation if the employer can prove that the accommodation would impose an “undue hardship.” However, the existence of undue hardship generally involves questions of fact for a jury to determine after expensive litigation and can be very difficult for companies, especially those with large operating budgets, to prove.
In Severson v. Heartland Woodcraft,3 the Seventh Circuit Court of Appeals provided clear guidance that a request for leave of two months or more is “too much” to be considered reasonable under any circumstances. The court held that an individual requiring that much leave is not, as a matter of law, a “qualified individual with a disability” subject to ADA protection, and that, consequently, an employer has no duty to accommodate the employee’s disability or prove that the requested leave would impose an undue hardship on the company.
As explained in greater detail below, the U.S. Supreme Court’s recent denial of the employee’s petition for certiorari requesting review of the Severson decision will likely be viewed by the Wisconsin state courts and courts in other federal circuits as adding credibility and persuasiveness to the straightforward reasoning employed by the Seventh Circuit in this decision.
Severson suffered a non-work-related back injury and requested an additional two months of leave to undergo back surgery after exhausting his three months of FMLA leave during which he pursued more conservative treatment alternatives. He also indicated that if the planned laminectomy surgery was not successful, a second surgery might become necessary, which could require a third month of leave.
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Because Heartland Woodcraft needed to fill Severson’s second-shift lead position and believed it would be able to find a competent replacement only if it offered applicants a permanent position, the company denied Severson’s request for additional leave. Heartland Woodcraft terminated Severson, but invited him to reapply for available positions once he recovered from his surgery. Instead of reapplying when his restrictions were lifted,4 Severson sued, claiming that the employer failed to accommodate his disability by denying him the extended leave he requested.
Prior Seventh Circuit Precedent
To be entitled to the protection and accommodation requirements of the ADA, a person must be a “qualified individual with a disability,” which is defined to include “individuals who, with or without reasonable accommodation, can perform the essential functions of the employment position.”5
In Byrne v. Avon Products6 the Seventh Circuit cited Waggoner v. Olin Corp.7 for “the rather commonsense idea that if one is not able to be at work, one cannot be a qualified individual.”8 Based on this premise, the Byrne court explicitly held that an employee who is unable to work for two or more months is not a qualified individual with a disability because the “inability to work for a multi-month period removes a person from the class protected by the ADA…. Not working is not a means to perform the job’s essential functions.”9
Severson’s Arguments Before the Seventh Circuit
Based on Byrne, the U.S. District Court for the Eastern District of Wisconsin granted Heartland Woodcraft’s motion for summary judgment and dismissed the case. Severson appealed and 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 him to (eventually) perform the essential functions of his job.
The court rejected this position based on the U.S. Supreme Court’s statement in U.S. Airways v. Barnett10 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.”
The U.S. Equal Employment Opportunities Commission (EEOC) intervened in Severson’s appeal to file an amicus brief arguing, on the basis of its regulations and guidance and the text of the ADA itself, that any request for leave of a definite duration must be deemed reasonable, and that such requests can be denied only if the employer can prove that the leave would cause undue hardship.
In Severson v. Heartland Woodcraft, the Seventh Circuit Court of Appeals provided clear guidance that a request for leave of two months or more is “too much” to be considered reasonable under any circumstances.
The EEOC argued that Byrne should not be read to establish a “categorical rule” that the need for a multi-month leave of absence always precludes an individual from being a qualified individual with a disability because the underlying facts in Byrne were significantly different from those presented by Severson’s situation.
Both Severson and the EEOC argued that Byrne should be disregarded because the bright-line test it espoused is contrary to well-established case law and EEOC regulations suggesting that the determination of whether a person is a qualified individual with a disability and whether a proposed accommodation is reasonable are fact-intensive inquiries that should be made on a case-by-case basis.11
The Seventh Circuit Decision
A three-judge panel (Judge Frank Easterbrook, Judge Diane Sykes, and Chief Judge Diane Wood) heard the case and rejected these arguments. In a unanimous decision authored by Judge Sykes, the court affirmed dismissal of Severson’s action and specifically reaffirmed the court’s decision in Byrne.
Judge Sykes stated 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.”12 The court went on to note that the positions espoused by Severson and the EEOC would transform the ADA into a “medical-leave entitlement”13 – which it was never intended to be.
Lawyers in future cases might argue that the Severson holding should be limited to situations with similar fact patterns, that is, in which the employee requests additional leave after exhausting 12 weeks of available FMLA leave. However, neither the language quoted above nor the facts of the Byrne case on which the Severson court relied seem to support such a limitation. Based on Severson, it is clear that an individual requiring extended leave of two months or more is not subject to protection under the ADA in the courts within the Seventh Circuit.
Requests for Leaves of Less Than Two Months
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 Co., a case cited in Severson, another Seventh Circuit panel held that a request for leave of two to four weeks should have been deemed a request for a reasonable accommodation.14
The Severson decision clearly confirms that leaves of two or more months will not be considered reasonable accommodations under the ADA in the Seventh Circuit. But requested leaves for periods between three and seven weeks in duration may present a different result. Lawyers representing employees in such cases will likely 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. The panel of judges that decided the Severson case might not agree, but other panels of the court could well take a more lenient view of the reasonableness of leaves in the three-to-seven-week range and shift the burden to the employer to demonstrate undue hardship to avoid liability for denial of leaves of such duration.
Limitations on the Severson Holding
Two recent federal district court cases have highlighted issues that may still support ADA claims for employees unable to work for extended periods of time. An employee who is able to perform the essential functions of the job, with or without reasonable accommodation, cannot be terminated when requesting to return to work after an extended leave that the employer has granted. At that point, the employee is able to work, and is thus a “qualified individual” under the ADA. The fact that the employee was on an extended leave before that time is not relevant.15
Additionally, employers should be prepared to establish that regular attendance is an essential function of the particular position in question; that there are no other types of accommodation, such as job restructuring, or a part-time or modified work schedule that might allow the individual to return to work; and that no other similarly situated nondisabled employees have been granted extended leaves of the type the employee is requesting.16
Impact of Severson Outside the Seventh Circuit
Although Severson is not “binding” on courts outside the Seventh Circuit (which includes Wisconsin, Illinois, and Indiana), several factors suggest that it will be persuasive precedent should the issue of the reasonableness of extended leave as an accommodation arise in other areas of the country.
First, Severson was a unanimous decision by three well-respected Seventh Circuit jurists. Judge Easterbrook authored the Byrne decision and thus clearly understood the scope and intent of the language used in that opinion. Chief Judge Diane Wood is considered by many to be a more “liberal” and generally “employee friendly” judge. Consequently, her decision to join in the opinion of the court and not file a dissent adds an extra measure of credibility and weight to the reasoning supporting the Severson decision. Finally, the decision was authored by Judge Diane Sykes, who has been widely rumored to be on the short list of potential candidates to fill a future vacancy on the U.S. Supreme Court.
Given the credentials of this panel, courts in other circuits that have held that leave will be viewed as a reasonable accommodation only if it allows the individual to return to work in the “near” or “immediate” future will likely be inclined to agree with the Seventh Circuit that extended leaves of two or more months do not meet that criteria.
The U.S. Supreme Court’s denial of Severson’s petition for certiorari also adds weight to the Seventh Circuit’s decision. In their arguments on the petition, both parties relied heavily on Hwang v. Kansas State University,17 a decision authored by now-Justice Gorsuch when he was a judge on the 10th Circuit Court of Appeals. The plaintiff in Hwang was a teacher who would have been unable to work during a proposed six-month leave that she claimed was a reasonable accommodation under the ADA.
Lawyers representing employees in such cases will likely 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.
Gorsuch’s opinion stated that Hwang could not “satisfy her elemental obligations” under the statute because “she wasn’t able to perform the essential functions of her job even with a reasonable accommodation,” thus removing her from the scope of the definition of a “qualified individual.”18 “By her own admission,” Judge Gorsuch explained, “she couldn’t work at any point or in any manner for a period spanning more than six months. It perhaps goes without saying that an employee who isn’t capable of working for so long isn’t an employee capable of performing a job’s essential functions – and that requiring an employer to keep a job open for so long doesn’t qualify as a reasonable accommodation.”19
The court noted that “reasonable accommodations – typically things like adding ramps or allowing more flexible working hours – are all about enabling employees to work, not to not work.”20
Heartland Woodcraft argued that the rationale of Judge Gorsuch’s opinion was congruent with and fully supported the Severson court’s conclusion that Severson was not a qualified individual under the ADA because he would have been totally unable to work for at least two months.
Severson, on the other hand, argued that the Hwang case supported his position because Judge Gorsuch also stated, in a general context, that the reasonableness of a proposed leave should be assessed on a case-by-case basis, with reference to “factors like the duties essential to the job in question, the nature and length of the leave sought, and the impact on fellow employees.” Severson urged the Supreme Court to review and reverse the Seventh Circuit’s decision because the bright-line test it espoused failed to consider anything other than the length of the proposed leave.
One can imagine that an employer’s lawyer addressing this issue in the future will point out that Justice Gorsuch could have pushed to grant the petition for certiorari if he had believed that the Seventh Circuit erred in determining that Severson was not a qualified individual simply on the basis of his need for two or more months of leave without considering “factors like the duties essential to the job in question … and the impact on fellow employees.”
It will likely also be noted that then-Judge Gorsuch stated in Hwang: “Still, it’s difficult to conceive how an employee’s absence for six months … could be consistent with discharging the essential functions of most any job in the national economy today.”21 Employers will argue that the same can be said for a proposed leave of two months or more, and that the denial of the petition for certiorari in the Severson case was an endorsement of the Severson court’s rationale.
How Severson Will Affect Interpretation of Wisconsin’s Laws
Like the ADA, the Wisconsin Fair Employment Act requires reasonable accommodation of disabilities. However, it is not unlawful under this statute to discharge an individual whose disability is “reasonably related to the individual’s ability to adequately perform the job-related responsibilities of that individual’s employment” if no reasonable accommodation is available.22
Although this language differs from the ADA provision defining a qualified individual with a disability as one who can, with or without reasonable accommodation, perform the essential functions of the position, the Wisconsin Court of Appeals noted, in Target Stores v. LIRC, that “[t]he requirement of being able to perform the essential functions of the job under the ADA operates similarly to the provision in § 111.34(2)(a), Stats., that it is not discrimination based on handicap ‘if the handicap is reasonably related to the individual’s ability to adequately undertake the job responsibilities.’”23
Wisconsin employers denying a request for extended leave related to a disabling condition should be prepared to demonstrate, if necessary, that providing the leave would have imposed an undue hardship on the employer.
In Target Stores, the court of appeals held that placing an employee on a “temporary” and “short-term” leave of absence to allow the employee to obtain treatment for a disabling condition that will allow the employee to return to work may be a reasonable accommodation requiring the employer to forebear from applying policies that would otherwise result in the employee’s termination.24 The Wisconsin Labor and Industry Review Commission (LIRC), which reviews administrative decisions applying the Wisconsin Fair Employment Act, has also recognized that a temporary leave of absence may be a reasonable accommodation but has held that lengthy and indefinite leaves of absence are not.25 However, neither the Wisconsin courts nor LIRC has ruled on a case, like Severson, in which the employer denied a request for leave of a defined period of two or more months.
While employers will have a strong argument that the Seventh Circuit’s reasoning in the Severson and Byrne cases should also be applied in interpreting the provisions of the Wisconsin Fair Employment Act requiring reasonable accommodation of disabilities, it remains possible that the state’s administrative agencies or courts could take a more lenient approach and find that longer leaves are “reasonable” as long as they are for a defined period and are likely to allow the employee to return to work. Consequently, Wisconsin employers denying a request for extended leave related to a disabling condition should be prepared to demonstrate, if necessary, that providing the leave would have imposed an undue hardship on the employer.
The Severson decision is important because it firmly establishes limits on an employee’s entitlement to extended leave as a reasonable accommodation under the ADA. It is clear that an individual requiring two or more months of leave is not subject to protection under the ADA in the courts within the Seventh Circuit, and possible that individuals requiring even shorter leaves will fare no better.
Given the stature of the judges on the panel deciding the Severson case, the Supreme Court’s denial of Severson’s request that the Court overturn this decision, and the congruence of the reasoning in the Severson and Hwang decisions, appellate courts in other circuits and in Wisconsin will likely find Severson to be very persuasive precedent when confronted with the issue of the reasonableness of extended leaves of absence as a disability accommodation.
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1 Nowak v. St. Rita High Sch., 142 F.3d 999, 1004 (7th Cir. 1998); Larson v. United Nat. Foods W. Inc., 518 F. App’x 589, 591 (9th Cir. 2013); Monette v. Electronic Data Sys., 90 F.3d 1173, 1187–88 (6th Cir. 1996); Rogers v. International Marine Terminals Inc., 87 F.3d 755, 759 (5th Cir.1996); Hudson v. MCI Telecommunications, 87 F.3d 1167, 1169 (10th Cir. 1996); Myers v. Hose, 50 F.3d 278, 283 (4th Cir. 1995).
2 Wood v. Green, 323 F.3d 1309, 1311-3 (11th Cir. 2003); Myers v. Hose, 50 F.3d 278, 283 (4th Cir. 1995); Conoshenti v. Public Serv. Elec. & Gas Co., 364 F.3d 135, 151 (3rd Cir. 2004); Roberts v. Progressive Independence Inc., 183 F.3d 1215, 1220 (10th Cir. 1999); Duckett v. Dunlop Tire Corp., 120 F.3d 1222, 1226 (11th Cir. 1997).
3 Severson v. Heartland Woodcraft Inc., 872 F.3d 476 (7th Cir. 2017), cert. denied, 138 S. Ct. 1441 (2018).
4 Although Severson ultimately did not need a second surgery, the physical restrictions imposed following the laminectomy surgery performed on the last day of his FMLA leave would have prevented Severson from performing the duties of his position for approximately three months.
5 42 U.S.C. § 12111(8).
6 328 F.3d 379, 380-81 (7th Cir. 2003).
7 169 F.3d 481, 482, 484 (7th Cir. 1999).
8 See also Nowak, 142 F.3d at 1003 (“Obviously, an employee who does not come to work cannot perform the essential functions of his job”); Basden v. Professional Transp. Inc., 714 F.3d 1034, 1037 (7th Cir. 2013) (“A plaintiff whose disability prevents her from coming to work regularly cannot perform the essential functions of her job, and thus cannot be a qualified individual for ADA purposes.”).
9 Byrne, 328 F.3d at 381.
10 535 U.S. 391, 401-02 (2002).
11 See School Bd. of Nassau Cty. v. Arline, 480 U.S. 273, 274 (1987); Weigel v. Target Stores, 122 F.3d 461, 466 (7th Cir. 1997).
12 Severson, 872 F.3d at 479.
14 Haschmann v. Time Warner Entertainment Co., 151 F.3d 591 (7th Cir. 1998).
15 EEOC v. S & C Elec. Co., 303 F. Supp. 3d 687 (N.D. Ill 2018) (“At the time defendant made the decision to terminate him, Rascher had received medical clearance to return to work. He was not terminated because he could not work. He was terminated because he could. Unlike the plaintiffs in Severson and Byrne he was ready, willing and able to return to his position without any accommodation. … [W]hether an individual is a qualified individual with a disability is determined at the time of the employment decision. Hamm v. Exxon Mobil Corp., 223 Fed. Appx. 506, 508 (7th Cir. 2007). Perhaps defendant could have terminated Rascher (without violating the ADA) while he was on leave, but it did not do so.”).
16 EEOC v. Midwest Gaming & Entertainment LLC, 2018 WL 2392014 (N.D. Ill 2018) (employer was not automatically entitled to summary judgment on ADA claim asserted by employee requesting a five-to-seven week extension of his approved leave for additional surgical treatment of cancer; plaintiff was granted opportunity to conduct discovery on the issues referenced above, which could support plaintiff’s claim).
17 753 F.3d 1159, 1161-62 (10th Cir. 2014).
18 Id. at 1161.
20 Id. at 1162.
22 See Wis. Stat. § 111.34(1)(b), (2)(a).
23 Target Stores v. LIRC, 217 Wis. 2d 1, 16 n.9, 576 N.W.2d 545 (Ct. App. 1998).
24 Id. at 20.
25 Schultz v. V & H Trucks Inc. (LIRC April 30, 2015).