Handling employees who seek additional leave for a disability after exhausting all Family and Medical Leave Act (FMLA) time frequently gives employers headaches. It has long been the position of the EEOC that where an employee is unable to return to work after using all available FMLA time, employers must often provide additional unpaid leave—perhaps for a number of months—as a form of “reasonable accommodation” under the Americans with Disabilities Act (ADA). Most courts have agreed that a request for extended leave with a reasonably certain return date established by the employee’s medical provider must often be granted, though with the caveat that a request for indefinite leave need not be approved.
On September 20, in Severson v. Heartland Woodcraft, Inc., the Seventh Circuit Court of Appeals took a far different approach, freeing employers in Indiana, Illinois and Wisconsin to be more stringent with such requests for months of additional leave after FMLA is exhausted. The court held that reasonable accommodation under the ADA is “limited to those measures that enable the disabled employee to work and that an employee who needs long-term medical leave cannot work and thus is not a qualified individual under the ADA.” Specifically, the court held that once an employee exhausted all available FMLA time and still needed additional leave of about two to three months the employer was not required by the ADA to provide that leave and lawfully terminated the employee because he was not a “qualified individual,” even though he was disabled. In doing so, the court contradicted longstanding EEOC guidance, the EEOC’s amicus briefing in the case and the position of most courts around the country.
Nevertheless, this is now the law in the Seventh Circuit that covers Indiana, Illinois and Wisconsin. Unless the court’s stance is overruled on a petition for rehearing or makes its way to the Supreme Court, employers within the circuit can simply deny additional block leave of substantial length to employees who have exhausted FMLA, even if they are disabled under the ADA. Employers with employees in other jurisdictions, however, may not have this latitude and should consult with counsel regarding the controlling law in that jurisdiction.
The court was careful to note that brief periods of intermittent leave such as a few days or even a couple of weeks to treat a disabling condition may still be required under some circumstances, but “a medical leave spanning multiple months 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.”
Of course, before jumping to termination an employer still first needs to determine whether it has any open position that an employee can perform with or without reasonable accommodation. But employers need not bump another employee or create a position that doesn’t otherwise exist in order to accommodate a disabled employee. However, if an employer has a policy of creating light duty positions for employees with occupational injuries, then the same benefit must ordinarily be extended to an employee with a disability who was not occupationally injured.