In a May 16, 2019 press release, the EEOC describes its $950,000 settlement with an employer. The EEOC claimed the employer did not allow employees with disabilities to return to work with medical restrictions. The EEOC also claimed the employer failed to accommodate employees who used up all leave available to them under the employer’s policies, and terminated them.
The EEOC has long contended that “100% healed” policies do not comply with the Americans with Disabilities Act (ADA) because they fail to contemplate reasonable accommodations. In addition, the EEOC has long held the view that the ADA requires covered employers to consider the accommodation of unpaid leave, regardless of duration, unless it would cause undue hardship. See EEOC’s Employer-Provided Leave and the Americans with Disabilities Act (May 9, 2016).
Regarding leave as an accommodation, the Seventh Circuit Court of Appeals (Indiana, Illinois, Wisconsin) disagrees with the EEOC. In its 2017 Severson v. Heartland Woodcraft decision, the Court ruled that multimonth leaves are not required accommodations under the ADA. The Court explained that the ADA is not a long-term leave statute. Rather, it protects individuals who can perform their essential job functions, with or without reasonable accommodation.
Key statements by the Court include:
- “The ADA is an antidiscrimination statute, not a medical-leave entitlement.”
- “[T]he term ‘reasonable accommodation’ is expressly limited to those measures that will enable the employee to work. An employee who needs long-term medical leave cannot work and thus is not a ‘qualified individual’ under the ADA.”
- “A multimonth leave of absence is beyond the scope of a reasonable accommodation under the ADA.”
- “[A] long-term leave of absence cannot be a reasonable accommodation. . . . Simply put, an extended leave of absence does not give a disabled individual the means to work; it excuses his not working.”
- “Intermittent time off or a short leave of absence – say, a couple of days or even a couple of weeks – may, in appropriate circumstances, be analogous to a part-time or modified work schedule [two examples of reasonable accommodation set forth in the ADA]…. But a medical leave spanning multiple months does not permit the employee to perform the essential functions of his job.”
- “Long-term medical leave is the domain of the FMLA….”
Severson does not suggest that an employer never must grant unpaid time off beyond leave provided by employer policy. The reasonableness of an accommodation is fact-specific and determined case-by-case. The Seventh Circuit noted that a couple of days or weeks of additional leave might have to be considered as an accommodation. This may be appropriate, for example, if an employee requires intermittent time off for a chronic condition or a brief extension of a leave of absence.
Severson is not the predominant view. If you have operations outside the Seventh Circuit, it is important to know the law of the applicable jurisdiction. As to operations within the Seventh Circuit, is also is important to know how State or local employment discrimination laws might impact your obligation to provide employees with leave beyond employer policies.
(This post is not legal advice. Consider consulting with a lawyer about specific situations.)