Suppose that an employee with cancer has exhausted 12 weeks of unpaid leave under the Family and Medical Leave Act (FMLA) but needs more time to recover from treatment before returning to work. Whether such an employee is entitled to additional unpaid leave as a reasonable accommodation under the Americans with Disabilities Act (ADA) is one of the thorny leave questions that employers confront—and one the Supreme Court may soon address, thanks to pending petitions for certiorari in two recent cases out of the Seventh Circuit.
The first case, Severson v. Heartland Woodcraft, Inc., 872 F.3d 476 (7th Cir. 2017), concerns a disabled employee who needed two or three months of leave beyond his FMLA leave to recover from back surgery. The Seventh Circuit held that the employer did not have to provide it. The whole point of ADA accommodations, the Court reasoned, is to allow disabled employees to perform the essential functions of their jobs, not to excuse them from working. Thus, the Court adopted a per se rule that “[a] multimonth leave of absence is beyond the scope of a reasonable accommodation under the ADA.” Id. at 479. In the second case, Golden v. Indianapolis Housing Agency, 698 F. App’x 835 (7th Cir. 2017), the Seventh Circuit applied this rule to deny a disabled employee’s claim for additional leave to recover from cancer surgery after FMLA and four weeks of additional employer-approved leave had expired. The employee sought more leave pursuant to her employer’s policy permitting employees to request up to 6 months of unpaid leave when no other form of leave was available. At the time of her request, her doctor had not provided an expected return-to-work date. The Seventh Circuit held the employee’s additional leave request removed her from being a “qualified individual with a disability” under both the ADA and the Rehabilitation Act, which incorporates ADA standards.
The Seventh Circuit’s per se rule is at odds with the EEOC’s 2016 guidance on ADA leave, which requires employers to evaluate such requests on a case-by-case basis. In the EEOC’s view, even a multimonth leave can be a reasonable accommodation in some circumstances if the end date is reasonably certain. The EEOC continues to apply this approach today. In January 2018 alone the agency sued one North Carolina employer for denying a diabetic employee’s request for several weeks of additional leave following the period that had been approved initially to recover from surgery, and it announced settlements with employers in Michigan and Mississippi who denied requests for leave extensions.
Like the EEOC, other federal courts apply a fact-intensive approach to ADA leave questions. See, e.g., García-Ayala v. Lederle Parenterals, Inc., 212 F.3d 638 (1st Cir. 2000). However, the Tenth Circuit, in an opinion by then Judge (now Justice) Gorsuch, seems to have drawn a bright line against requests for leave of more than 6 months. Hwang v. Kansas State Univ., 753 F.3d 1159, 1161 (10th Cir. 2014) (“It perhaps goes without saying that an employee who isn’t capable of working for so long isn’t an employee capable of performing a job’s essential functions—and that requiring an employer to keep a job open for so long doesn’t qualify as a reasonable accommodation.”) Some courts have also ruled that employees determined to be disabled “indefinitely” after a period of initial leave are not qualified individuals entitled to accommodation under the ADA. See, e.g., Minter v. District of Columbia, 809 F.3d 66 (D.C. Cir. 2015).
The Supreme Court could grant review in Severson or Golden, or both, in the upcoming months to provide some needed clarity on this issue. Given the unsettled state of the law, it is prudent for employers to continue engaging disabled employees who cannot return to work at the end of an FMLA or other initial company-approved leave in an interactive process to determine whether additional leave (or some other accommodation) is reasonable. The amount of leave the employee has already taken, the length of additional leave requested, whether the employee’s doctor is able to provide a reasonably specific return date, and the impact on the employee’s co-workers and the employer’s operations are among the relevant considerations.
