By Jeffrey A. Macey, Macey Swanson LLP
On September 20, 2017, the Seventh Circuit Court of Appeals decided Severson v. Heartland Woodcraft, Inc., a case where a Plaintiff sought a three month leave beyond the federally mandated FMLA leave of 12 weeks that he had already taken due to a back injury. When the leave was denied, he filed a complaint under the Americans with Disabilities Act.
The Seventh Circuit affirmed the District Court’s grant of summary judgment in favor of the defendant employer, holding that the “ADA is an antidiscrimination statute, not a medical-leave entitlement.” It reaffirmed a prior holding in Byrne v. Avon Prods., Inc., that the “term ‘reasonable accommodation’ is expressly limited to those measures that will 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.”
- Does calling the ADA an “antidiscrimination statute” accurately describe the statute?
The ADA is an “antidiscrimination statute” of course, but in addition to its “antidiscrimination” language, the statute also imposes affirmative obligations on employers. The statute recognizes that facially nondiscriminatory policies, even if uniformly applied, necessarily disadvantage disabled employees who could, with some accommodation, contribute to the economy.
The accommodation goals of the statute are accomplished through some awkward language. The statute first forbids an employer from discriminating against qualified individuals with a disability. It is in the statute’s definition of a qualified individual – an individual who can perform the essential functions of his or her job with or without a reasonable accommodation – that the statute imposes the affirmative obligation on employers to accommodate individuals.
The statute limits the range of potential accommodations by requiring that they be reasonable. During litigation whether an accommodation is reasonable is a question of fact. And, in addition to the bottom-line requirement that an employer “reasonably accommodate” the statute imposes an intermediate requirement that the employer and employee engage in the interactive process to determine what a reasonable accommodation would be. Fundamentally, though, the employer is required to affirmatively work to include disabled employees in the workforce; this is an obligation imposed by the ADA beyond the obligations incurred by other “antidiscrimination” statutes, for example Title VII.
- Are accommodations under the ADA limited to those measures that “will enable the employee to work?”
The language in the Severson decision refers to required accommodations as those “expressly limited to those measures that will enable the employee to work” and contrasts this language with a leave requirement. This implies that there is a distinction between leave and a measure that will enable the employee to work. However, under the ADA, some type of schedule accommodation is specifically recognized as a reasonable accommodation. The question, generally, under the ADA is not whether an employee can return to work on the employer’s preferred schedule, but whether the employer can accommodate the employee’s need for leave in its operations.
For instance, while pregnancy is not a disability for purposes of the ADA, pregnancy-related complications can be. If an employee, for instance, has twelve weeks of maternity care lined up under the FMLA, but suffers from preeclampsia, prenatal diabetes, or another condition that justifies early intervention or simply bed rest in a pregnancy, the employee may need leave prior to the pregnancy that exceeds twelve weeks. The question is not whether the leave will “enable the employee to work.” It won’t. By definition, bed rest prevents an employee from working. The question is whether the leave will allow the employee to remain employed. And the question the Court should ask is how long an employer can reasonably afford to not have the employee at work and still have that employee remain employed.
In its Severson opinion, the Seventh Circuit notified that the statute itself lists as potential accommodations “part-time or modified work schedules.” But holds that this type of accommodation is an accommodation that facilitates work. As noted above, however, a part-time or modified schedule forbids an employer from requiring an employee to work when the employee cannot due to his or her disability. The question, then, before and after Severson is whether the employee’s proposed schedule adjustment is reasonable under the law interpreting the ADA. (And generally whether the adjustment is reasonable is a question of fact).
The Court held that “a long term leave of absence cannot be a reasonable accommodation.” Surely, at a smaller company, it cannot. But, given the rapidly expanding use of temporary workers, it can be for some employers, particularly those that regularly adjust employee hours and staffing levels based on demand for their product. The Seventh Circuit would perhaps respond that an employee could reapply in such a circumstance (as it notes that the Plaintiff failed to reapply in the Severson case after termination), but dismissal and reapplication presents problems with benefits and leave entitlements – two issues particularly important to disabled employees – that are remedied by the simple grant of an extended leave of absence by the employer.
The Court in Severson held open the possibility of intermittent leave or a brief leave of absence “say, a couple of days – or even a couple of weeks” as potential reasonable accommodations, which it must, given the text of the statute. But it punts longer leaves to the FMLA. This is problematic for many employees, given the FMLA’s strict requirements about employer size and length of service and number of hours worked.
On its face, Severson seems to leave pregnant women with disabilities, newer workers, and those with multiple injuries out in the cold. However, the Court makes clear that it is simply reasserting its previous holding in Byrne. Given the correct set of facts, longer periods of leave may still be accommodations found reasonable under the Act.
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