Extended Leave of Absence Found Not a Reasonable Accommodation Under the ADA

Many employers have offered some form of extended leave to an employee as a reasonable accommodation under the Americans with Disabilities Act (“ADA”) when that employee’s leave under the Family and Medical Leave Act (“FMLA”) has been exhausted. But how much extended leave is reasonable under the ADA? In Severson v. Heartland Woodcraft, Inc. , No. 14-CV-1141, 2017 WL 4160849 (7th Cir. Sept. 20, 2017), the United States Court of Appeals for the Seventh Circuit held that a three month leave of absence following the expiration of FMLA leave was not a reasonable accommodation under the ADA.

Raymond Severson worked for Heartland Woodcraft, Inc. (“Heartland”), for a number of years. He received several promotions, but he did not perform well in his last positon as operations manager, leading Heartland to move him to a second-shift “lead” position, which required Severson to perform manual labor in the production area of the plant, operate and troubleshoot production machinery, and frequently lift materials and product weighing 50 pounds or more, among other physically demanding tasks. On the day that Heartland notified Severson of the move, he injured his back, aggravating a preexisting condition and left work early. Severson was out for several weeks on FMLA leave and regularly communicated with the company about his progress and condition. Ultimately, Severson’s doctor recommended surgery, which he scheduled for August 27, 2013, the same day that Severson’s FMLA leave expired. The typical recovery time for Severson’s surgery was two months. Severson asked for an extension of his medical leave so he could recover. Heartland declined his request and terminated Severson’s employment on August 27, but invited Severson to reapply for employment when he received medical clearance to work. On October 17, Severson’s doctor cleared him to resume work with a 20 pound lifting restriction and, on December 5, Severson was cleared to resume work with no limitations. Instead of reapplying for employment with Heartland, Severson sued Heartland for failing to accommodate his disability under the ADA. Severson argued he could have been given at least three reasonable accommodations: (1) a two or three month leave of absence; (2) transfer to a vacant position; and (3) a temporary light duty position with no heavy lifting. The district court granted summary judgment to Heartland. Severson appealed.

The parties and Seventh Circuit focused almost entirely on the issue of whether an extended leave of absence constituted a reasonable accommodation under the ADA. The court’s analysis started with the provision of the ADA that includes the definition of a reasonable accommodation. That provision states a reasonable accommodation “may” include: “(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.” The court noted the phrase “may include” was significant because it meant the concept of a reasonable accommodation was a “flexible” one and the statute merely listed examples. The concept of a “qualified individual” on the other hand is “concrete” according to the court because a “reasonable accommodation” is supposed to allow a “qualified individual” to “perform the essential functions of the employment position.” The court further explained that “[i]f the proposed accommodation does not make it possible for the employee to perform his job, then the employee is not a ‘qualified individual’ as that term is defined in the ADA.” To this end, the court noted that the illustrative examples in the statute “are all measures that facilitate work.”

Based on these underlying principles, the Seventh Circuit held that “a long term leave of absence cannot be a reasonable accommodation” because “[n]ot working is not a means to perform the job’s essential functions.” In other words, “an extended leave of absence does not give a disabled individual the means to work; it excuses his not working.” As such, the “[i]nability to work for a multi-month period removes a person from the class protected by the ADA.” The court deferred any need for extended medical leave to the realm of the FMLA.

The court, however, acknowledged that “a brief period of leave to deal with a medical condition could be a reasonable accommodation in some circumstances.” One example the court provided was intermittent leave or a short leave of absence of a few days or even a couple weeks, depending on the facts and circumstances. The court analogized such short periods of leave to a part-time or modified work schedule, which was one of the illustrative examples of a reasonable accommodation in the statute.

As for Severson’s request to transfer to a vacant position, the court determined that Severson did not satisfy his burden of proving that there were in fact vacant positions available at the time his employment terminated. He simply showed that vacant positions existed after his employment terminated.

Lastly, with respect to the request for a light-duty position, the court noted that an employer ordinarily is not obligated to create such a position to accommodate an individual with a disability. The court explained, however, that if the employer has a policy of creating light-duty positions for employees who are occupationally injured, then the company must extend that benefit to disabled employees who are not occupationally injured, unless the company can demonstrate that creating such a position would constitute an undue hardship. Although Heartland had a discretionary policy to give occupationally injured employees temporary light-duty assignments, these assignments were given infrequently and generally lasted no longer than two days. As a result, the court found that Heartland did not have a policy of creating light duty positions for occupationally injured employees and, thus, Severson’s request for an accommodation in this regard was not reasonable.

The court’s decision in Severson is significant, as several courts have endorsed the concept of extended leave constituting a reasonable accommodation under the ADA, provided that certain other conditions are satisfied. While the Seventh Circuit’s decision in Severson still endorses the concept of extended leave constituting a reasonable accommodation, the court’s decision seems to limit an extension of leave to intermittent leaves/breaks or perhaps a few days or weeks, not months. It will be interesting to see whether courts in other jurisdictions follow the Seventh Circuit’s analysis or whether this ruling will be limited to those jurisdictions subject to the Seventh Circuit. In either case, companies should continue to consult with counsel when evaluating ADA issues and what constitutes a reasonable accommodation under the ADA.

If you have any questions regarding this post, please contact Stephen B. Stern at sstern@hwlaw.com or (410) 260-6585 or Amitis Darabnia at adarabnia@hwlaw.com or (410) 260-6592.

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