Wednesday, September 27, 2017

7th Circuit rejects extended medical leaves of absence as ADA accommodation

“You’re FIRED!”

No, this post is not about a recent Trump rally; it’s about the end game to Severson v. Heartland Woodcraft, Inc., in which an employer terminated an employee unable to return to work after the expiration of his 12-week FMLA leave.

The employee requested an additional two or three months of unpaid leave as a reasonable accommodation under the ADA to recover from back surgery (a position endorsed by the EEOC). The employer refused the accommodation request and terminated the employee.

The 7th Circuit Court of Appeals held that the employer acted well within its legal rights under the ADA, because an extended unpaid medical leave is not an ADA-approved reasonable accommodation.

[A] long-term leave of absence cannot be a reasonable accommodation. … Simply put, an extended leave of absence does not give a disabled individual the means to work; it excuses his not working. … 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 [the ADA]. But a medical leave spanning multiple months does not permit the employee to perform the essential functions of his job. To the contrary, the inability to work for a multi-month period removes a person from the class protected by the ADA.

Without a doubt, this case is a huge win for employers, which grapple daily with the issue of employee medical leaves and the difficulties they present in staffing, scheduling, and overall attendance rules.

It’s not all rosy for employers. This holding stands in direct contrast to the position of the EEOC—that an employer must consider providing unpaid leave to an employee with a disability as a reasonable accommodation if the employee requires it, and so long as it does not create an undue hardship for the employer.

For this reason, Severson notwithstanding, employers act at their peril if they deny an unpaid leave of absence without engaging in the interactive process with an employee and without establishing an undue hardship.

Until the Supreme Court weighs in on this issue, I recommend employers proceed practically and tread lightly around these issues.

I’ve coined the A-E-I-O-You approach to handling employee requests for extended unpaid medical leaves.

Avoid leave policies that provide a per se maximum amount of leave, after which time an employee loses his or her job.

Engage in the interactive process with an employee who needs an extended leave of absence, which includes the gathering of sufficient medical information and a definitive return to work date documented by a medical professional.

Involve your employment counsel to aid in the process of deciding when an extended leave crosses the line from a reasonable accommodation to an undue hardship.

Open your workplace to disabled employees to demonstrate to the EEOC, if necessary, that you take your ADA obligations seriously.

You should document all costs associated with any extended unpaid leaves (modified schedules, added overtime, temporary hires, lost productivity, etc.) to help make your undue hardship argument, if needed.

Otherwise, you risk potentially unnecessary, and most definitely costly, litigation.