September 27, 2017

A recent Seventh Circuit panel decision affirming limits on how much unpaid time off employers must give injured or disabled workers as a "reasonable accommodation" under the Americans with Disabilities Act has brought clarity to one of the muddier areas of federal employment law, management attorneys say.

The Sept. 20 ruling that a multimonth leave of absence is too big an ask to qualify as the type of "reasonable accommodation" employers are required by the ADA to provide is the appeals courts' clearest statement yet on businesses' leave obligations under federal disability law, these attorneys say, giving employers valuable guidance and ammunition to fight suits alleging they're too stingy with time off.

Worker Raymond Severson filed the underlying suit against Heartland Woodcraft Inc. after the retail display fabricator fired him rather than giving him two to three months of leave to recuperate from back surgery after he had already used up his Family and Medical Leave Act allotment.

The ADA allows "qualified individuals" — those who "with or without reasonable accommodation, can perform the essential functions" of their jobs — to request an accommodation so long as it doesn't impose an "undue hardship" on the employer. Leave is one possible accommodation, along with others such as transfer to a less taxing position or a restructured work schedule.

Severson and the U.S. Equal Employment Opportunity Commission, which filed an amicus brief on his behalf, said that as was the case here, employers must grant workers disability-related leave when they request a specific amount of time off, when they do so in advance of needing it, and when they can likely return to work when this time runs out.

But the panel called this an "untenable interpretation" of employers' obligations to accommodate disabled workers, saying a worker who needs multiple months of leave is not a qualified individual because "an employee who needs long-term medical leave cannot work."

The EEOC argued the ruling was fact-specific and that the Byrne court did not intend to hand down "a broad rule concerning leave requests that exceed one month." But the Severson panel said the Byrne decision is "sound" and opted to reaffirm.

Kalpana Kotagal, a partner with Cohen Milstein Sellers & Toll PLLC's Civil Rights & Employment practice, argued Severson's value outside the Seventh Circuit is limited in light of a handful of decisions by other circuit courts affirming that leave can be a reasonable accommodation under the National Labor Relations Act. The First, Sixth, Ninth and Tenth circuits have all recognized multimonth leaves of absence as reasonable accommodations under the ADA, she noted.

"If you look at the decision from the First Circuit, Garcia-Ayala [v. Lederle Parenterals Inc.], which is a 2000 decision, that really permits extended leave," Kotagal said. "It comes down to the question of how much leave [is too much], and I think there's certainly room to argue ... in the Seventh Circuit, you might be able to get away with a month."

The full article can be accessed here.