Seventh Circuit Rejects Extended Leave

Originally published by Thomas J. Crane.

If a person needs an extended leave for treatment for a bad back, would the ADA require an employer to allow him an extra few months? The Seventh Circuit in Severson v. Heartland Woodcraft, Inc., No. 15-3754 (7th Cir. 9/20/2017), said no. Ray Severson, left work for his full 12 weeks of unpaid leave under the FMLA. He then told his employer he would have to undergo surgery on his back. He needed disc decompression surgery. He would need at least two months off from work for recovery. HR told him his last day would be the last day of FMLA. HR added that he could reapply for his position when his treatment ended. In effect, he was fired. Later, when Mr. Severson recovered and was cleared to return to work, he sued is employer, saying the employer had failed to accommodate him.

The plaintiff argued on appeal that the company could have offered him long-term leave, a light duty job, or reassignment to a vacant job. The Seventh Circuit, however, simply ruled that a long-term leave is not viable/ Not working, said the court, is not a means to fulfill the essential functions of the job. If the employee cannot perform the essential functions of the job, then he is not qualified for the job. The court noted that EEOC guidance expressly states long-term leave is a possible alternative under the ADA, if the leave is of definite duration, is requested in advance, and is likely to enable the worker to return to work. But, the court insists if the EEOC’s position as correct, then the ADA would become a medical leave act. It would supplant the FMLA.

The decision contravenes caselaw in other circuits which have found long-term leave to be a viable option. See, e.g., Walsh v. United Parcel Serv., 201 F.3d 718, 727 (6th Cir. 2000) (reasserting requirement for individualized analysis but not requiring accommodation because even after one year’s paid leave, followed by five months unpaid leave, plaintiff’s homeopathic physician only offered the vague possibility of returning in one to three more years, and suggested no other work he could do); Cleveland v Fed. Express Corp, No 02-3172, 2003 US App LEXIS 24786, at *13 (6th Cir Nov 28, 2003) (unpublished) (finding leave from August 20, 1997 to February 1998, extended to March of 1998 (6 months total) not unreasonable).

The court did not ask whether long-term leave would have presented an undue hardship for the employer. It found, instead, as a blanket rule, that leave longer than the FMLA leave of three months is per se too long. A blanket rule does not satisfy the individual assessment requirement of the ADA.

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