Employers, for far too long, have been left to guess how long of an unpaid leave they must grant their employees as a reasonable accommodation for a disability under the Americans with Disabilities Act (ADA). While there had been prior decisions that provided some guidance, it seemed every time there appeared to be some basis to figure out ‘how long was too long,’ a contrary decision would come down due to the vague and speculative nature of these circumstances. In Severson v. Heartland Woodcraft, Inc., 2017 WL 4160849 (7th Cir. Sept. 20, 2017), the Seventh Circuit provided some finality to the issue (hopefully).
The plaintiff had taken 12 weeks of FMLA leave due to severe back pain and, on the last day of his leave, underwent back surgery which required an additional 3 months of leave. The plaintiff asked the defendant to continue his leave but the defendant refused, terminated his employment and invited him to reapply when he was medically cleared to work. The plaintiff sued claiming that the defendant failed to provide him a reasonable accommodation under the ADA.
The Seventh Circuit held that since a qualified individual with a disability is a person who, with or without a reasonable accommodation, can perform the essential functions of the position, that a multi-month leave of absence is not a reasonable accommodation because it does not, by definition, 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. Id at *1. Importantly, the Seventh Circuit stated:
For example, we noted that “[t]ime off may be an apt accommodation for intermittent conditions. Someone with arthritis or lupus may be able to do a given job even if, for brief periods, the inflammation is so painful that the person must stay home.” Byrne, 328 F.3d at 381. 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 of the examples listed in § 12111(9). But a medical leave spanning multiple months does not permit the employee to perform the essential functions of his job. To the contrary, the “[i]nability to work for a multi-month period removes a person from the class protected by the ADA.” Id.
Id at *3.
This is an extremely important ruling as the Seventh Circuit unequivocally held that an unpaid leave period of even 3 months is not a reasonable accommodation and stated that anything more than “a couple of days or even a couple of weeks” is not a reasonable accommodation. While there is some disagreement amongst dictionaries, “a couple of” is typically used to refer to “two or three” of something. Thus, the Seventh Circuit appears to have held that unpaid leave exceeding 2-3 weeks is not a reasonable accommodation under the ADA. This not only provides employers with some clarity and a bright-line, but the bright-line is shorter than most likely would have predicted or pushed for.
Employers would be well advised to consider granting unpaid leaves of absence that do not exceed 2-3 weeks as a reasonable accommodation but, in light of the Seventh Circuit’s ruling, should feel empowered under the ADA to deny requests for longer periods of unpaid leave.
Of course, an employer will still have to consider whether its state’s respective disability laws may require longer leaves of unpaid absence to avoid violations of those laws. In Wisconsin, there is at least an argument to be made that state law should be interpreted similarly in defining that an unpaid leave of absence exceeding 2-3 weeks is not a reasonable accommodation. After all, the Labor and Industry Review Commission (LIRC) has in the past at least partially relied on the Seventh Circuit’s interpretation of defining ‘how long is too long’ in the accommodation context. See Schultz v. V&H Trucks, Inc., ERD Case No. CR201102234 (LIRC 4/30/15). However, at least initially, the LIRC might be reluctant to draw the bright-line at 2-3 weeks.
If you have any questions about this article, please contact an attorney at Mallery & Zimmerman.