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7th Circuit Reaffirms: Multi-Month Leave is Not a Reasonable ADA Accommodation
Over a year ago, I reported on a case I was handling in which an employee with a non-work-related back injury requested an additional 2-3 months of leave to undergo back surgery after exhausting his three-months of FMLA leave on more conservative treatment alternatives. Because the employer needed to fill the employee's second shift lead position, and believed it would only be able to find a competent replacement if it offered applicants a permanent position, the request for additional leave was denied, and the employee was asked to re-apply for available positions once he recovered from his surgery. Instead of reapplying, the employee sued, claiming that the employer failed to “accommodate" his disability by denying him the additional 2-3 month leave.
In 2003, the Seventh Circuit Court of Appeals stated in Byrne v. Avon Products that the “inability to work for a multi-month period removes a person from the class protected by the ADA." Based on Byrne, the Federal District Court in Milwaukee granted my client's motion for summary judgment and dismissed the employee's case. The employee appealed and the EEOC joined in, arguing that any request for leave of a “definite duration" is “reasonable," and that such requests can be denied only if the employer can prove that the leave would cause “undue hardship." The EEOC argued that Byrne should be overruled because an employee should be considered a “qualified individual with a disability" even if he needs multiple months of leave in order to be able to get back to work.
I argued this case, Severson v. Heartland Woodcraft, before a 3-judge panel of the 7th Circuit Court of Appeals in Chicago last September. On September 20th of this year I received the Court's Decision affirming dismissal of the employee's action, along with its holding in Byrne that, although a brief period of leave (“a couple of days or even a couple of weeks") may sometimes be a reasonable accommodation under the ADA, “the term 'reasonable accommodation' is expressly limited to those measures that enable a person to work. An employee who needs long-term medical leave cannot work and thus is not a 'qualified individual' under the ADA." The Court went on to note that the EEOC's position would transform the ADA into a “medical leave entitlement" – which it was never intended to be.
The employee's attorneys and the EEOC argued that an extended leave of a “definite and time-limited duration" should be considered a “reasonable accommodation" because it would be “effective" in allowing the employee to (eventually) perform the essential functions of his job. The Court rejected this approach, and instead agreed with my position, based on the U.S. Supreme Court's response to this same argument in U.S. Airways v. Barnett, that “in ordinary English, the word 'reasonable' does not mean 'effective.' It is the word 'accommodation,' not the word 'reasonable,' that conveys the need for effectiveness….An effective accommodation could prove unreasonable."
Although the Court seemed to suggest in this case that requested leaves of more than two weeks might not be “reasonable accommodations," employers should be wary. In Haschmann v. Time Warner Entertainment, a case mentioned in this decision, another panel of the Court found that a request for leave of 2-4 weeks should have been deemed a request for “reasonable accommodation." The decision here, in the Severson case, sets two months as a bright line test for leaves that will not be considered reasonable accommodations. Leaves between four and seven weeks in duration may present a different result, and attorneys representing employees in such cases will likely argue that the repeated references in Bryne and Severson to “multi-month" leaves as not being “reasonable accommodations" suggest that any request for a leave of less than 8 weeks should be considered “reasonable." I doubt that the panel of judges that decided the Severson case would agree, given their statement that leaves of “a couple of days or even a couple of weeks" may sometimes be a reasonable accommodation. But we'll have to await future cases to determine if leaves in the 3 - 7 week range can be considered reasonable accommodations that shift the burden to the employer to demonstrate “undue hardship" in order to deny the leave.
If you have questions about this or other labor & employment questions, please feel free to contact Dave McClurg at (414) 223-6956 or firstname.lastname@example.org.