- Is Extended FMLA Leave a Reasonable Accommodation Under the ADA?
- November 21, 2017 | Authors: John D. Clifford; Gregory D. Grant; Meredith Merry Campbell; Joy C. Einstein
- Law Firms: Shulman, Rogers, Gandal, Pordy & Ecker, P.A. - Washington Office; Shulman, Rogers, Gandal, Pordy & Ecker, P.A. - McLean Office; Shulman, Rogers, Gandal, Pordy & Ecker, P.A. - Potomac Office
Recently, the 7th Circuit Court of Appeals (governing Wisconsin, Illinois and Indiana) grappled with this question, and their decision creates some controversy within the federal courts as to how far the FMLA and ADA may overlap. In Severson v. Heartland Woodcraft, Inc., an employee who exhausted his FMLA leave requested an additional two to three months of leave to allow him to recover from back surgery. The employer rejected his request, terminated his employment and invited him to reapply for a position when medically cleared. When the employee sued, the District Court for the Eastern District of Wisconsin sided with the employer. The Court of Appeals for the 7th Circuit later agreed, concluding that “a long-term leave of absence cannot be a reasonable accommodation.” The Court explained that while brief periods of leave, such as a few days or even a couple of weeks, may be a reasonable accommodation, a period of multiple months of leave would remove an employee from ADA coverage, as he/she is no longer qualified to work.
The decision is directly applicable to employers in Wisconsin, Illinois, and Indiana, as well as those who have employees in those three states. However, the Severson decision is also notable as it conflicts with the EEOC’s guidance that a long-term medical leave of absence beyond that offered by FMLA should qualify as a reasonable accommodation when the leave is of a definite, time-limited duration, requested in advance, and enables an employee to perform their essential job functions upon their return.
To date, a majority of federal courts, including the 4th Circuit (governing Maryland and Virginia), have followed the EEOC’s guidance on this subject. However, the 7th Circuit’s decision confirms that this area of law is not completely settled and warrants continued attention.
Requests for leave (in excess of FMLA and/or intermittent and on short notice) as accommodations under the ADA are often complicated and can lack straightforward answers. Employers must be well versed on the current state of the law and remain up-to-date on their obligations and options when addressing leave requests as an accommodation. When confronted with these requests and other complicated issues, employers should not hesitate to contact trusted counsel to ensure compliance with ever-evolving laws and agency guidance.