Last Wednesday, the United States Court of Appeals for the Seventh Circuit held that the Americans With Disabilities Act (“ADA”) does not require employers to provide additional unpaid leave as an accommodation to employees who have expended their Family and Medical Leave Act (“FMLA”) leave. Although the Seventh Circuit’s ruling upheld its prior decision in Byrne v. Avon Productions Inc., the decision is significant because it directly contradicts the Equal Employment Opportunity Commission (“EEOC”)’s position that granting additional, long-term unpaid leave to employees is a reasonable accommodation under the ADA.
Raymond Severson worked for Heartland Woodcraft, Inc., a fabricator of retail display fixtures. In early June 2013, Severson took twelve weeks of medical leave under the FMLA to deal with serious back pain. Then, on his last day of leave, Severson underwent back surgery that required him remain off of work for another two or three months. Severson asked Heartland to continue his medical leave even though he had exhausted his FMLA entitlement. Heartland denied Severson’s request and terminated his employment, but invited him to reapply when he was medically cleared to work.
Several months thereafter, Severson’s doctor lifted all restrictions and cleared him to resume work, but Severson did not reapply for employment at Heartland. Instead, he sued Heartland alleging that it had discriminated against him in violation of the ADA by failing to provide a reasonable accommodation — namely, a three-month leave of absence after his FMLA leave expired. The district court awarded summary judgment to Heartland, applying the Byrne reasoning to find that Heartland was not required to provide Severson with additional unpaid leave as a reasonable accommodation under the ADA.
Severson appealed. The EEOC filed an amicus brief in support of Severson, urging the Seventh Circuit to overturn its prior decision in Byrne and find that a long-term medical leave of absence should qualify as a reasonable accommodation when the leave is (1) of a definite, time-limited duration; (2) requested in advance; and (3) likely to enable the employee to perform the essential job functions when he returns.
The Seventh Circuit’s Ruling
A unanimous Seventh Circuit panel affirmed summary judgment for Heartland and stuck by its decision in Byrne. The panel explained that the term “reasonable accommodation,” as defined under the ADA, is expressly limited to those measures that will enable the employee to work. Thus, an employee who needs long-term medical leave and cannot work is not a “qualified [protected] individual” under the ADA because “not working is not a means to perform the job’s essential functions. Simply put, an extended leave of absence does not give a disabled individual the means to work; it excuses his not working.”
The panel expressly rejected the EEOC’s position because it would transform the ADA, which is an antidiscrimination statute, into a medical-leave statute — in effect, an open-ended extension of the FMLA. As the panel explained, the EEOC’s interpretation of the term “reasonable accommodation” to include long-term unpaid leave was untenable because it equates “reasonable accommodation” with “effective accommodation,” an interpretation that the Supreme Court had rejected in its U.S. Airways, Inc. v. Barnett in 2002. In other words, effectiveness is a necessary but not sufficient condition for a reasonable accommodation under the ADA.
The panel did note that providing employees with a brief period of unpaid leave to deal with a medical condition could be a reasonable accommodation in some circumstances, even under Byrne. For example, someone with arthritis or lupus may be able to do a given job even if, for brief periods, the inflammation is so painful that the person must stay home. Thus, intermittent time off or a short leave of absence such as a few days or weeks may, in appropriate circumstances, be analogous to a part-time or modified work schedule (and therefore a reasonable accommodation). Long-term unpaid medical leave, however, is not a reasonable accommodation under the ADA because, as the panel explained, it “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.”
What Does This Mean For Employers?
Employers may deny requests for long-term unpaid medical leave beyond FMLA entitlement as an accommodation to employees in Illinois, Indiana, and Wisconsin without facing liability under the ADA. Employers should, however, consider granting intermittent time off or short leaves of absence to employees in certain circumstances. As the Seventh Circuit confirmed, such leave can allow employees to still perform the essential functions of their jobs and thus qualify as a reasonable accommodation under the ADA.
For employees in other jurisdictions, the situation is less clear. In May 2016, the EEOC released a resource document wherein it stated that a request for leave due to a medical condition must be treated as a request for a reasonable accommodation. Further, the EEOC advised that an employer may need to provide unpaid leave as a reasonable accommodation even where the employer does not customarily offer leave as a benefit or where the employee has exhausted or otherwise is not eligible for leave under existing policies. With this in mind, employers should be aware that they may face ADA liability if they deny requests for long-term unpaid medical leave beyond FMLA entitlement to employees outside of the Seventh Circuit.
Of course, employers must provide employees with disabilities with access to leave on the same basis as all other similarly-situated employees. For example, if an employer’s policy provides unpaid medical leave to employees beyond FMLA entitlement, employers must allow a qualified employee access to such leave the same as if he or she was not disabled. Moreover, state and local laws may provide paid or unpaid leave to employees in qualifying circumstances beyond the FMLA. Employers should review their Equal Employment Opportunity and leave policies to ensure full compliance with applicable laws, and apprise Human Resources professionals of these recent legal developments.