Multimonth ADA Leave Isn't Required in the 7th Circuit

​The appeals courts will remain divided over whether the Americans with Disabilities Act (ADA) requires multimonth leave: The Supreme Court has declined to review a 7th Circuit decision that the ADA doesn't require employers to allow workers with disabilities to be off the job for two months or more.

As a result of the Supreme Court's April 2 order, it is now clear within the 7th Circuit that employees who need two or more months of ADA leave before they can return to work are not qualified individuals with disabilities protected by the law, said David McClurg, an attorney with Petrie + Pettit in Milwaukee. McClurg represented the defendant employer in the case, Severson v. Heartland Woodcraft Inc. The 7th Circuit covers Illinois, Indiana and Wisconsin.

In Severson, the plaintiff requested two to three months of additional leave under the ADA after his Family and Medical Leave Act (FMLA) time off had been exhausted. The plaintiff had back surgery on the last day of his FMLA leave and needed time to recover. The company denied the request and terminated him but invited him to reapply when he was medically clear. The plaintiff did not reapply but sued under the ADA. The district court ruled in the employer's favor and the 7th Circuit affirmed, stating, "A multimonth leave of absence is beyond the scope of a reasonable accommodation under the ADA."

Other appeals courts haven't reached the same conclusion as the 7th Circuit, which is why David Fram, director of ADA and equal employment opportunity services with the National Employment Law Institute in Golden, Colo., said he thinks it would be "a huge mistake for employers outside the 7th Circuit to follow Severson." Fram said that the decision is "inconsistent with virtually all of the other courts and certainly is inconsistent with what the EEOC [Equal Employment Opportunity Commission] has said."

However, McClurg said that the Supreme Court's choice not to review the decision will provide strong support for arguments by employers in other circuits that multimonth leaves are not reasonable accommodations and that employees unable to work for such long periods are not qualified individuals with disabilities protected by the ADA.

Extensions of Leave

"Employers often struggle with situations in which an employer's doctor at first provides a hopeful prognosis that the employee with a serious nonwork-related illness or injury will be able to return to work after a relatively brief period of leave, but then extends that period of incapacity as the end date of the initial period—and subsequent extensions of that leave period—approaches," McClurg said.

This requires employers to temporarily shift the employee's duties to colleagues or assign them to temporary employees, causing "significant inefficiencies," he noted.

The Severson decision allows employers in the 7th Circuit to, without violating the ADA, terminate the employment of workers who make months-long leave requests. Employers nevertheless should obtain written confirmation from the employee's health care provider regarding the period that the employee will be unable to work, McClurg recommended.

Companies can, as the employer did in this case, invite employees to reapply for open positions once their restrictions allow them to return to work, he observed.

"However, as the 7th Circuit pointed out, the ADA is not a leave statute," he said. "The accommodations required by the ADA are those designed to allow the employee to perform the essential functions of their job, not to allow extended job abandonment."

Leave Requests of Less than Two Months

Even in the 7th Circuit, ADA leave of less than two months may be required, he said.

Leave of a few days to a week will generally be a reasonable accommodation, noted James Walcheske, an attorney with Walcheske & Luzi in Brookfield, Wis., and Appleton, Wis., who represented the plaintiff in the decision.

[SHRM members-only toolkit: Accommodating Employees' Disabilities]

"So the question is where is the line between one week and multimonth?" he asked. Walcheske guessed that leave up to a month may be a reasonable accommodation but beyond that might be deemed multimonth and not required, depending on the circumstances.

For example, a business with thousands of "interchangeable employees" would have a much harder time claiming it would be unreasonable or an undue hardship to cross the one-month mark than a small company, he noted.

State Law

Under Wisconsin law, there is a more lenient interpretation of reasonable accommodation than under the ADA, according to Walcheske, who cautioned that denying multimonth leave might violate state statutes.

However, McClurg said that employers will have a strong argument that the reasoning of the 7th Circuit should also be applied in interpreting Wisconsin's laws. That said, he noted, "It remains possible, though I think unlikely, that the state's administrative agencies or courts could take a different position."

'Great Win' for Employers

McClurg characterized the Supreme Court's order declining to review the case as "a great win" for employers subject to the ADA.

Businesses in the 7th Circuit know they do not have to provide multimonth leaves under the ADA, Walcheske noted. "Everywhere else, it's the status quo," he said.

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