On April 2, 2018, the U.S. Supreme Court declined to review the decision of the Seventh Circuit Court of Appeals in Severson v. Heartland Woodcraft, Inc., 872 F.3d 476 (7th Cir. 2017), which held that multi-month leave is not a reasonable accommodation under the Americans with Disabilities Act (ADA).
The plaintiff in Severson suffered from back pain, which made it difficult for him to perform his physically demanding job as a fabricator of retail display fixtures. He took a 12-week medical leave under the Family Medical Leave Act (FMLA), but a back surgery on the last day of his FMLA leave necessitated a two- to three-month extension of his leave, which he sought under the ADA. The company refused to provide the additional leave, and Mr. Severson sued.
Mr. Severson thus forced the Seventh Circuit to grapple with what has long been an intractable dilemma for employers: Does the ADA require employers to grant leave in excess of what is required by the FMLA? If so, how much leave is enough?
The ADA requires employers to provide disabled employees with “reasonable accommodations” that enable them to perform the “essential functions” of their jobs. By way of example, the ADA includes a list of accommodations that “may” be reasonable:
(A) making existing facilities used by employees readily accessible to and usable by individuals with disabilities; and
(B) job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.
42 U.S.C. § 12111(9). This list does not include extended leave; however, the list is not exhaustive, and there has been much debate and litigation over whether extended leave can be a “reasonable accommodation.”
The EEOC has taken the firm position that ADA requests for extended leave must be treated on a case-by-case basis, and that regardless of how generous a company’s leave policies are, exceptions for additional leave must be made in some circumstances. In 2017, the EEOC settled multiple claims with United Parcel Service (UPS) that alleged UPS violated the ADA by failing to make exceptions to its leave policy, even though the policy permitted employees to take up to 12 months of leave. UPS agreed to pay $2 million in settlement. See EEOC Press Release.
Returning now to the case at hand, in Severson the Seventh Circuit rejected the EEOC’s position, holding that a two- to three-month leave of absence is not a reasonable accommodation required by the ADA. The court acknowledged that “[i]ntermittent time off or a short leave of absence—say, a couple of days or even a couple of weeks—may, in appropriate circumstances,” constitute a reasonable accommodation. However, extended leave is not a “reasonable accommodation” required by the ADA because such an “accommodation” does not enable the employee to perform the “essential functions” of his or her job.
The court drew a distinction between the ADA and FMLA, stating that “[t]he ADA is an antidiscrimination statute, not a medical-leave entitlement.” Therefore, the ADA should not be treated as “an open-ended extension of the FMLA.”
The Seventh Circuit’s distinction between the ADA and FMLA is particularly significant for small private employers. The FMLA applies to private employers only if they have 50 or more employees in a 75-mile radius, while the ADA applies to all employers with 15 more employees. Under the EEOC’s position (which the Seventh Circuit rejected), the ADA could be used as a backdoor for imposing extended leave obligations on small employers. Such use of the ADA would render meaningless the limitations that Congress placed on the FMLA’s scope for the protection of small private employers.
Closer to home, the Tenth Circuit Court of Appeals, whose jurisdiction covers Utah, Colorado, New Mexico, Wyoming, Oklahoma, and Kansas, has made clear that an employee’s request for more than six months of leave is unreasonable. See Hwang v. Kansas State Univ., 753 F.3d 1159, 1162-63 (10th Cir. 2014) (Gorsuch, C.J.) (interpreting the Rehabilitation Act, which mirrors the ADA and applies to public employees). The reasoning of Hwang implies that the six months offered by Ms. Hwang’s employer was more generous than what the law requires. For example, the court stated, “The Rehabilitation Act [like the ADA] seeks to prevent employers from callously denying reasonable accommodations that permit otherwise qualified disabled persons to work—not to turn employers into safety net providers for those who cannot work.”
In summary, Severson and the U.S. Supreme Court’s decision not to review Severson suggest that the national trend is toward not requiring employers to provide extended leave under the ADA. However, because the law is still in flux, employers should be cautious in denying extended leave requests under the ADA and should consult with legal counsel before doing so.
For assistance navigating the FMLA and the ADA, contact the Labor & Employment Group at Clyde Snow & Sessions at 801.322.2516 or slm@clydesnow.com.