Seventh Circuit Holds a Multi-Month Leave is Not a Reasonable Accommodation

Last week the Seventh Circuit dealt a blow to the EEOC's continued position that medical leave is a reasonable accommodation when the leave is (1) of a definite, time-limited duration; (2) re-quested in advance; and (3) likely to enable the employee to perform the essential job functions upon return. The panel rejected that position, noting it glossed over the length of the requested leave, improperly transforming the ADA into "an open-ended extension of the FMLA."

The underlying facts go like this: Severson took 12 weeks of FMLA leave to undergo treatment for herniated and bulging discs in his back. Nonsurgical treatment did not work, so on the last day of leave, he had surgery that would require 2-3 months of additional leave to recover.  Severson requested that leave. His employer denied the request because he had exhausted his FMLA leave. It terminated his employment and invited him to reapply when able to return to work. Rather than reapply, he filed a charge of discrimination alleging the employer failed to accommodate his disability. After conciliation failed, Severson sued in federal court.

On appeal, the court held the employer did not violate the ADA by refusing Severson's request for a 2-3 month leave. The panel emphasized “[t]he ADA is an anti-discrimination statute, not a medical leave entitlement.” An employee who needs a multi-month leave is not a qualified individual with a disability because he cannot work with or without a reasonable accommodation. In other words, if the requested accommodation does not allow the employee to work, the ADA does not provide protection.

Although the Seventh Circuit’s ruling runs contrary to the EEOC’s stance that medical leave that will allow the employee to return to work is a reasonable accommodation, the court did not grant employers the right to terminate whenever an employee cannot return to work upon exhaustion of available leave. The court noted leave of a couple days or weeks may be a reasonable accommodation analogous to a reduced or modified work schedule, which are typically reasonable accommodations. Employers should also be aware of their state court’s position on leave as a reasonable accommodation, as it may be broader than the Seventh Circuit’s position.

While assessing risk, employers should also note that despite the Severson ruling, the EEOC's position concerning medical leave has not appeared to change, at least for now. Just days after the Severson decision, the EEOC filed suit in the Northern District of Illinois alleging an employer violated the ADA by refusing an employee extra leave to undergo cancer treatment. It remains imperative that employers continue to consider leave requests on a case-by-case basis.