ADA May No Longer Require Employers to Cover Long-Term Medical Leaves of Absence
For decades, employers have followed certain imperatives when an employee has a serious health or disabling medical condition. If conditions meet established standards – the employee is eligible and the employer is the requisite size – the employer must provide leave under the federal (and any state) Family and Medical Leave Act (FMLA).
Once the allowable leave period is exhausted and the employee needs more time off, the Americans with Disabilities Act (ADA) and any state equivalent come into play. Courts have almost universally held that a medical leave of absence (LOA) is a type of reasonable accommodation required under the ADA when additional time off is needed, such as when an employee is recovering from an illness or medical procedure. The Equal Employment Opportunity Commission (EEOC) has also long considered leave to be a reasonable accommodation for qualified individuals.
However, the controversy begins when it comes to the length of medically required leave under the ADA.
A Difference of Opinion
The courts and the EEOC appear to agree that a request for an indefinite leave of absence is not a request for a reasonable accommodation.
However, the EEOC generally takes the position that the leave must be granted when the duration of a leave can be projected with some specificity. Meanwhile, various federal Courts of Appeals are likely to be more restrictive in their approaches, depending on the specific facts of a case.
A recent opinion from the 7th Circuit Court of Appeals appears considerably to have shortened the required length of a medical LOA, at least in Wisconsin, Illinois, and Indiana, where the Court has jurisdiction. In Severson v. Heartland Woodcraft, Inc., an employee originally took 12 weeks of leave under the FMLA for his serious back pain. On the last day of FMLA leave, however, he underwent back surgery, which required him to miss work for another two or three months. Rather than grant this additional leave to the employee, the employer terminated him and said that he could reapply after his recovery. Severson sued, claiming that his former employer had not afforded him a reasonable accommodation.
The Court held, however, that the employer was not required to accommodate him by granting him several months of leave (in fact, he recovered after three months but declined to reapply for employment).
In its opinion, the Court initially reiterated the fundamental principle that the ADA prevents discrimination against a qualified individual on the basis of disability. Moreover, a “qualified individual” is a person with a disability who, with or without a reasonable accommodation, can perform the essential functions of their job. The Court then said, however, that because an employee who needs a long-term medical LOA is unable to work, they cannot be considered a qualified individual under the Act.
The ADA, the Court said, is “an anti-discrimination statute, not a medical-leave entitlement.” While short periods of leave, spanning “a couple of days or even a couple of weeks,” may be appropriate, an extended LOA, “spanning multiple months,” does not permit the employee to perform the essential functions of their job.
The Court distinguished the FMLA, of which “[l]ong-term leave is the domain,” from the ADA, which “applies only to those who can do the job.” It thus rejected the EEOC’s position that an LOA of a definite, time-limited duration, after which the employee would likely be able to return to work and perform the essential job functions, was protected under the ADA.
The Severson opinion and rationale were most recently reaffirmed in October 2017 in Golden v. Indianapolis Hous. Agency, when the same court again said that a requested LOA of a couple of days or a couple of weeks – in this case, to recover from breast cancer – eliminated the individual’s status as a qualified individual under the Act.
The former employee underwent surgery and needed additional time to recover beyond her 12-week FMLA leave. Near the end of her FMLA leave, the employer informed her that her FMLA leave would soon expire and that their policy allowed her to take an additional four weeks of leave, which she accepted. About two weeks before she was required to return to work, her doctor said that her condition was “ongoing” and her period of incapacity was “until release.” The day before she was set to return, the employee requested an unspecified amount of leave which could last up to six months. The employer refused and terminated the employee. Holding that the former employee was not a “qualified individual” under the ADA, the Court cited Severson and stated that the employer was not required to provide additional leave under the Act.
Conclusion
It remains to be seen whether the significant limitations on a medical LOA as a means of accommodation, established in the Severson and the Golden decisions, will be adopted more widely. Certainly these opinions are inconsistent with those in a variety of other Courts of Appeals which have allowed LOA’s spanning several months as a means of reasonable accommodation. Should one of your employees ask for a lengthy LOA to accommodate their disability, we recommend that you consult with counsel before taking any action.
For more information, contact one of our employment attorneys.