There may not be an issue that strikes more fear in the land of HR than how to deal with an employee who cannot return to work after Family and Medical Leave Act (FMLA) leave expires. Is some additional leave beyond 12 weeks required? The answer is almost always "yes."
But how much leave are we obligated to provide?
For ages, I've carefully counseled employers on this issue, recognizing that the courts and the Equal Employment Opportunity Commission (EEOC) have declined to offer any meaningful guidance on how much leave beyond FMLA employers are required to provide. Is it two months? Four? How about six?
There has been no plausible answer. Until now.
In the matter of weeks, one rather influential federal appellate court has issued not one, but two decisions that set a far clearer path for employers to follow when deciding whether and how much additional leave they need to provide as a reasonable accommodation under the Americans with Disabilities Act (ADA). Let me quickly explain these cases and offer practical steps to consider when analyzing an employee's request for leave.
First Came the Severson case
Unless you've been securely wedged under a Human Resources rock over the past several weeks, you've been bombarded with alerts about the Severson case.
The facts of this case are fairly straightforward. Raymond Severson was employed at Heartland Woodcraft, and he suffered from a chronic back condition, which occasionally flared up and limited his ability to walk, bend, lift, sit stand, move and work. One such flare up caused him to take a continuous leave from work. He asked for and was granted 12 weeks of FMLA leave.
Two weeks before his FMLA leave expired, Ray informed Heartland that his condition had not improved and that he would need surgery. Heartland notified Ray the day before his surgery that his employment with Heartland would end when his FMLA leave expired the following day. However, it encouraged him to reapply for employment when he was able to return. As the story goes, he was ready to return several months later, but instead of reapplying, Ray filed an ADA lawsuit claiming, among other things, that his employer failed to provide a reasonable accommodation by granting him an extended leave of absence.
ADA is Not a Leave of Absence Statute
In analyzing Ray's ADA claim, the 7th Circuit Court of Appeals acknowledged that a "brief" period of leave to deal with a medical condition could be an accommodation in some situations. But, the court also made clear that long-term leaves of absence fit securely within the "domain" of the FMLA, not the ADA. And in doing so, it set out a fairly bright-line rule:
"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. . . 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." (Severson v. Heartland Woodcraft)
Wow. There is the new rule. A leave of couple of days or weeks may very well be required under the ADA. But a couple months? No soup for you!
It's as if employers have been given a piece of the Holy Grail! For ages, we've searched for a more defined limit on how much leave an employer is obligated to provide under the ADA as a reasonable accommodation. This influential circuit court, at least, has defined this boundary for us.
[SHRM members-only toolkit: Accommodating Employees' Disabilities]
Then Came the Golden case
Notably, weeks after the Severson case above was decided, the same appellate court doubled down on its position that the ADA was not a leave of absence statute and that leave beyond a couple of weeks simply is not required under the ADA.
Marytza Golden's case also is simple fact pattern. She suffered from breast cancer, requiring surgery and an extended leave. As her 12 weeks of FMLA leave was about to expire, she sought an unspecified period of leave, which could have lasted as much as six months. Her employer, the Indianapolis Housing Agency, declined to grant more than four additional weeks of leave. When Marytza could not return from work after 16 weeks off (12 weeks of FMLA leave and 4 additional weeks), her employer terminated her employment.
Again, the court went right back to its Severson decision issued weeks earlier, finding that
"A multimonth leave of absence is beyond the scope of a reasonable accommodation under the ADA . . .[and that such a request] removes an employee from the protected class under the ADA." (Golden v. IHA)
Insights for Employers
These two cases are, in many respects, a game changer. But what are the practical takeaways?
1. Where can I get aggressive?
For employers in Illinois, Wisconsin and Indiana (states covered by the 7th Circuit Court of Appeals), I clearly am being more aggressive in the manner in which I handle ADA leave requests. This court's guidance is golden [no pun intended]: A few days or weeks of leave is likely required under the ADA. But one that is open-ended and spans multiple months simply is not.
2. For employers in other states, I'm using these cases as strong authority, but I'm not slamming the gas pedal.
Let's remember: Engaging the employee in the ADA's interactive process is essential. Communicate during FMLA leave…after FMLA leave ends…and at all times before and in between.
When an employer calls me for guidance on whether they can deny leave or terminate an employee after he or she has asked for the second or third extension of leave (after FMLA has expired), I ask for feedback on all the communications they have had with the employee regarding issues such as:
- The employee's ability to perform his/her job.
- Whether the employee likely will be able to return to work (and when).
- Whether the requested leave will allow the employee to return to work immediately after the leave ends or very soon thereafter.
- Whether there are other accommodations to help the employee return to work in a timely manner.
- Whether the employer has received any feedback from the employee's physician about the above issues.
The EEOC's decision to initiate litigation against an employer often hinges on whether the employer is to blame for the breakdown in the interactive process. To minimize your exposure to liability, keep communicating with your employees! The interactive process is essential.
3. Approach the undue hardship analysis carefully.
In an earlier post, I highlighted a presentation I gave some time back with EEOC Commissioner Chai Feldblum that analyzes the approach employers should take when determining whether a leave request poses an undue hardship. In that post, I offer a number of criteria to consider when making this determination. This analysis may be useful when determining whether a leave of absence is negatively impacting your operations.
4. A quick word of caution about intermittent leave.
Notably, in both the Severson and Golden cases, the employee's return to work date was unclear, which often is the case. The court in Severson left open the possibility that a shorter leave period—indeed, intermittent leave—might actually be more palatable as a reasonable accommodation under the ADA. All the more reason to tread carefully and conduct an individualized assessment of each leave request to determine whether a leave of absence is reasonable and effective in helping the employee return to work.
Jeff Nowak is a shareholder at Littler, an employment and labor law practice representing management, and author of the FMLA Insights blog, where this article originally appeared. © 2017 Jeff Nowak. All rights reserved. Republished with permission.
Related SHRM Articles:
Following ADA Leave Decision 'Huge Mistake' Outside 7th Circuit, SHRM Online Employment Law, November 2017
So Is ADA Leave Required or Not?, SHRM Online Employment Law, October 2017
ADA Does Not Require Extended Leave Beyond FMLA, 7th Circuit Finds, SHRM Online Employment Law, October 2017
Employee Who Did Not Respond to Employer Loses ADA, FMLA Claims, SHRM Online Employment Law, October 2017