December 2017 - Following ADA Leave Decision ‘Huge Mistake’ Outside 7th Circuit
Supreme Court might resolve courts’ divide on ADA leave
A 7th U.S. Circuit Court of Appeals decision that the Americans with Disabilities Act (ADA) does not require multi-month leave should not be followed outside the 7th Circuit, which covers Illinois, Indiana and Wisconsin, according to one expert on the ADA.
The 7th Circuit ruled in Severson v. Heartland Woodcraft Inc. in September that the ADA may mandate leave for a couple of days or weeks to deal with a medical condition. But the court reaffirmed its 2003 decision in Byrne v. Avon Products Inc. that an employee who needs a long-term medical leave cannot work and so is not a qualified person with a disability covered by the ADA.
"I think it would be a huge mistake for employers outside the 7th Circuit to follow Severson," said David Fram, director of ADA and equal employment opportunity services with the National Employment Law Institute in Golden, Colo. "I think that this decision is inconsistent with virtually all of the other courts and certainly is inconsistent with what the EEOC [Equal Employment Opportunity Commission] has said." The Supreme Court may resolve the split among the appeals courts, he noted. He said that if the high court did, he would be surprised if the Supreme Court adhered to the Seversonanalysis.
'Fundamental Misunderstanding of the ADA'
"The 7th Circuit simply has a fundamental misunderstanding of the ADA," said Michael McClory, an attorney with Bullard Law in Portland, Ore.
The 7th Circuit does not appear to acknowledge that an extended leave of absence might allow time for a disabled individual to physically or mentally improve to the point where that person can perform essential job functions, he added. "If that is the case, then extended leave might be reasonable in some circumstances and will not be reasonable in others."
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Both the EEOC and the 7th Circuit should have said that the determination of whether extended leave is reasonable requires a case-by-case analysis, he said.
Common Sense Tips
As a practical matter, the EEOC will scrutinize any employer leave policy that cuts off leave after a specified period, said Joan Casciari, an attorney with Seyfarth Shaw in Chicago. Even in the 7th Circuit, it's not particularly difficult for a good plaintiff's lawyer to conjure up another claim, such as a failure to accommodate by transferring the individual to another open position, to get around the holding of Severson, she said.
"Employers should use common sense," she stated. "If an employee has exhausted FMLA [Family and Medical Leave Act leave] and needs a brief extension beyond FMLA, arbitrarily saying 'no' without a reasonable business explanation is not a good practice. It often takes time to source, recruit, onboard and train a replacement. And even if the ADA claim could be defeated, other employment law issues, such as race, sex and age could be raised."
Failure to Reapply
One key fact in the Severson case is that the employer invited the plaintiff to reapply when he was able to return to work, but he instead sued, noted William Goren, J.D., principal with ADA Consulting in Decatur, Ga. Unlike Fram, Goren said, "My view is that a majority of the Supreme Court as currently constituted would be very receptive to the 7th Circuit view."
Carol Poplawski, an attorney with Ogletree Deakins in Chicago, agreed that the failure of the plaintiff to reapply was a critical part of the court's decision.
"On these facts, the court made its pronouncements, but a different set of facts may garner a different result," she said. For example, if a company had a short-term disability policy of providing 26 weeks of leave, the company would have to grant 26 weeks off to an eligible employee "because for this employer, a 26-week leave gives a disabled individual the means to work," she stated.
While the ADA does not require indefinite leave, some appeals courts have ruled that leave well beyond 26 weeks may be required.
In the 1998 decision of Ralph v. Lucent Technologies Inc., the 1st Circuit held that four weeks of additional leave beyond 52 weeks of disability leave at full pay under the employer's disability benefits plan was reasonable.
And in the 2000 ruling of Garcia-Ayala v. Lederle Parenterals, the 1st Circuit said that a two-month extension of medical leave was a reasonable accommodation for an employee with cancer who had already taken 15 months of leave, said Jonathan Mook, an attorney with DiMuroGinsberg PC in Alexandria, Va.
Fram noted that in this year's decision of Delgado-Echevarria v. AstraZeneca, an employee had been on leave for six to seven months and wanted another 12 months, and the 1st Circuit said that was not a reasonable request.
What Is 'Reasonable' Is Up for Debate
Mook said that Severson was important because it reaffirms that accommodations must be reasonable under the ADA.
"Clearly, the amount of leave that an employer may be required to provide to an employee as a reasonable accommodation will continue to be the subject of debate in the courts," Mook said. "At some point in time, it is likely the Supreme Court will be called upon to provide some definitive guidance as to the proper analysis."
In the meantime, if an employer wants to deny leave, it should be able to articulate the factual justification for the rejection to the EEOC, a court or a jury, he said. The business also should offer the person with a disability an alternative accommodation, such as a transfer.
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By Allen Smith, J.D.
Nov 15, 2017