SCOTUS will not resolve a circuit split on the length of leave an employer may be required to give to an employee as a reasonable accommodation under the Americans with Disabilities Act (ADA). On April 2, the Court denied the petition for certiorari in a case where the Seventh Circuit put significant restrictions on the length of leave considered reasonable. Severson v. Heartland Woodcraft, Inc., 872 F.3d 476 (7th Cir. 2017), cert. denied, No. 17-1001, 2018 WL 489210 (U.S. Apr. 2, 2018)
A principal dispute centers on whether an employee who cannot work is a “qualified individual” with a disability under the ADA. A “qualified individual” is an individual “who, with or without a reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.”
Different Circuits, Different Approaches
Is an employee who is completely unable to work for a finite period of time due to a disability still “qualified” for the position? Many courts have held that the leave enables the employee to work, albeit at its conclusion, thus the employee is “qualified.” Nunes v. Wal-Mart Stores, Inc., 164 F.3d 1243, 1247 (9th Cir. 1999). As such, unpaid leave may be a reasonable accommodation when the employee intends to return to work after treatment or recovers from a disability related illness. The length of the leave depends on the circumstances, but extensions beyond a one-year period are mostly rejected by courts.
The Seventh Circuit has rejected this general approach. The inability to work renders the employee unqualified for the job, thus outside of the ADA’s protection, it held. “Simply put,” the court wrote, “an extended leave of absence does not give a disabled individual the means to work; it excuses his not working.” Likening a brief leave of absence to a modified work schedule, an accommodation expressly enumerated under the ADA, the court agreed however there are situations where a short leave — a few days or weeks, but not months — may be a reasonable accommodation. Long-term leave is the “domain of the FMLA (Family Medical Leave Act),” not the ADA.
Navigating the Split
Given these inconsistent approaches, employers may find it challenging to create and follow best practices regarding the length of leave they must give as accommodations under the ADA. We offer these suggestions to help them comply with the ADA’s requirements on leave.
Review Job Descriptions
If regular attendance is an essential job function, the position description should so specify. Regular attendance is essential for many jobs including those where the position exists to perform that function, few employees are available to perform that function, or the employee was hired for her expertise to perform that function. While the job description will not be outcome determinative, it is some evidence that denial of leave was not in response to an accommodation request.
Treat Each Leave Request Individually
Employers should not establish any blanket rules stating that leave is never a reasonable accommodation under the ADA. Nor should they provide a maximum amount of permitted leave, or that employees who are unable to return to work at the conclusion of FMLA leave are automatically terminated. Each inquiry should still be addressed on an individual basis.
Caution: Some Ailments Are Serious Health Conditions AND Disabilities
Outside the Seventh Circuit, an employee who has been on the job for one week may be entitled to a lengthy leave for a disability, whereas an employee with 11-and-a-half months of service would not be entitled to the same for a serious health condition under the FMLA. This is because unlike the ADA, which provides for an affirmative duty to reasonably accommodate employees (and job applicants) without any ‘waiting period’ so long as the employer has 15 or more employees, the FMLA imposes restrictions such as length of service (12 months), number of hours worked (1,250), and a requirement that the employer have a larger workforce (50 or more employees employed within 75 miles of the employee’s worksite).
Many medical conditions constitute both, a serious health condition and disability (e.g., cancer), so if an employee lacks tenure for FMLA , be sure to carefully examine whether leave is required under the ADA.
Employees are not entitled to the accommodation of their choice, only to a reasonable one. Talk to the employee about various options. A shorter leave of absence followed by telecommuting, or the like, may give the employee and employer what each needs.
Confirm Employee’s Return Date
Confirm and document whether the leave requested identifies when the employee will return to work. Courts seem to agree that, where a physician indicates she is “unable to determine” the employee’s return date, the request for leave is unreasonable.
Consider ‘Undue Hardship’
Where the employer intends to deny extended leave as a reasonable accommodation, analyze whether the leave would create an “undue hardship” for the employer. Consider whether, based on factors such as the employer’s financial resources; number of employees; and composition, structure, and function of the work force, the employer would face significant difficulty or expense due to the nature and cost of accommodation. Document the findings, which will also serve as evidence of a good faith compliance attempt in any subsequent ADA proceedings.
Finally, consult an employment attorney before denying a lengthy leave as an accommodation. To the extent counsel agrees the denial of leave is proper, but a jury later disagrees, written advice may show good faith and defeat a determination of willfulness (and double damages).