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Seventh Circuit Says Multiple Month Leave of Absence is Not a Reasonable Accommodation
In two recent cases, the Seventh Circuit Court of Appeals, which covers Wisconsin, Illinois, and Indiana, held an employee in need of a multiple month leave of absence is not within the class of employees protected by the Americans with Disabilities Act (“ADA”). The Seventh Circuit’s decisions present a potential conflict between the obligations imposed by ADA and current precedent under the Wisconsin Fair Employment Act (“WFEA”) which says a leave of absence can be a reasonable accommodation.
The ADA prohibits employers from discriminating against a “qualified individual” with a disability, which is an individual who can perform the essential functions of the position with or without a reasonable accommodation. The ADA also requires employers to provide a “reasonable accommodation,” which is an accommodation that permits the employee to perform the essential functions, absent an undue hardship on the employer. Interpreting these requirements, the Seventh Circuit previously ruled in Byrne v. Avon Prods., Inc., 328 F.3d 379 (7th Cir. 2003), that an employee in need of a long-term medical leave is not able to work and, therefore, is not a “qualified individual” under the ADA.
Severson and Golden Decisions
In September 2017, the Seventh Circuit once again addressed whether an employee is entitled to a long-term medical leave under the ADA. In Severson v. Heartland Woodcraft, Inc., 872 F.3d 476 (7th Cir. 2017), the employee aggravated a pre-existing back condition and suffered from severe back pain. The employee was granted leave under the Family and Medical Act (“FMLA”). The employee’s condition did not improve and surgery was scheduled the same day he exhausted his FMLA leave. The employee requested an extension of leave to recover from surgery, which was typically at least two months. The employer told the employee his employment would end when his FMLA leave was exhausted, and he could reapply when he was cleared to return to work. The employee did not reapply after he recovered from surgery; instead, he sued alleging discrimination and a failure to accommodate under the ADA.
The Seventh Circuit found in favor of the employer and held “a long-term leave of absence cannot be a reasonable accommodation.” The Court reasoned a leave of absence does not allow an employee to work. Because the accommodation (i.e., a leave of absence) does not allow the employee to work and perform the essential functions, the employee seeking the leave is not “qualified” and, therefore, falls outside the ADA’s protected class. The Court clarified an intermittent leave or a short-term leave of “a couple of weeks” may be a reasonable accommodation, but a “leaving spanning multiple months” is not required by the ADA.
Less than a month after Severson was decided, Seventh Circuit affirmed its holding in Golden v. Indianapolis Housing Agency, Case No. 17-1359 (Oct. 17, 2017 7th Cir.). The employee in Golden underwent treatment for cancer. The employee exhausted available FMLA leave and four more weeks of leave provided by the employer. The employee requested an additional six months of unpaid leave under the employer’s leave of absence policy, though her doctor had not provided an expected return date for the employee at the time of her request. The employee’s leave request was denied and the employee was terminated. The Seventh Circuit stated it was bound by its holding in Severson and ruled the employee was not a qualified individual entitled to the protections of the ADA.
There is little doubt the Severson and Golden decisions provide welcomed guidance to employers under the ADA. However, Wisconsin employers must still take into consideration their obligations under state law when addressing an employee’s request for a medical leave. Like the ADA, the WFEA also prohibits discrimination on the basis of a disability and requires employers to provide a reasonable accommodation to employees with a disability. While there are similarities between the ADA and the WFEA, Wisconsin state courts and the Labor and Industry Review Commission, which reviews administrative enforcement actions under the WFEA, have generally interpreted accommodation obligations under the WFEA more broadly than the ADA. Under the WFEA, an indefinite leave of absence will not be a reasonable accommodation, but a temporary leave of absence, such as the two-month leave at issue in Severson, can be a reasonable accommodation. Accordingly, there could be instances where, under Severson andGolden, an employee would not be entitled to a leave of absence under the ADA, but the WFEA would require the employer to grant a leave of absence. Thus, Wisconsin employers must be careful in attempting to rely on the Severson and Golden decisions.
If you have any questions about the Severson or Golden decisions, or an employer’s obligations under the ADA or WFEA, please contact Brett Schnepper at firstname.lastname@example.org or 262-364-0262 or your Buelow Vetter Attorney.