The Leaves Are Falling: Differing Interpretations Of Leave As ADA Accommodation

by Smith Debnam Narron Drake Saintsing & Myers, LLP
Contact

Smith Debnam Narron Drake Saintsing & Myers, LLP

The United States Equal Employment Opportunity Commission (EEOC) has consistently maintained that leaves of absence should be considered as a form of reasonable accommodation under the Americans with Disabilities Act (ADA). In support of that position, the EEOC recently filed a lawsuit against the Blood Bank of Hawaii, contending that its “rigid maximum leave policy” inappropriately violated employees’ rights. The policy provides that employees with disabilities who utilize all of their FMLA leave may not be granted a leave of absence as a reasonable accommodation and further provides that employees returning from leave are required to demonstrate that they have no limitations on their future performance. In its complaint against the Blood Bank of Hawaii, the EEOC alleged that “[e]mployees should never be terminated or forced to resign simply because they need additional leave for their disabilities.”

The tension between an employer’s need to staff a position during an employee’s leave and a disabled employee’s need for accommodation presents a formidable challenge. While it is never a good idea for an employment policy to contain a provision that an employee who exhausts FMLA leave will immediately be terminated or for an employer to require that an employee return from leave with no restrictions, it is evident that an appropriate balance needs to be achieved.

Recognizing this tension, the United States 7th Circuit Court of Appeals recently issued an opinion that is instructive on this issue.  In the case of Severson v. Heartland Woodcraft, Inc., an employee held the physically demanding position of fabricating retail display fixtures. He took a 12-week FMLA leave in order to receive treatment for serious back pain. On the last day of his leave, he underwent back surgery which required that he remain away from work for another two or three months. His employer denied his request for additional medical leave and terminated his employment, inviting him to reapply for his position when he was medically cleared for work. Three months later, he received medical clearance, but rather than reapplying for his position, he filed suit alleging that his employer had failed to reasonably accommodate his disability in violation of the ADA.

The district court awarded judgment in favor of the employer, and the 7th Circuit affirmed, stating that “[t]he ADA is an antidiscrimination statute, not a medical-leave entitlement.” The ADA forbids discrimination against a “qualified individual on the basis of disability,” defined as a person who, “with or without reasonable accommodation, can perform the essential functions of the employment position.” The Court reasoned that “reasonable accommodation” is expressly limited to those measures that will enable the employee to work” and that “[a]n employee who needs long-term medical leave cannot work and thus is not a ‘qualified individual’ under the ADA.” The Court concluded that “[s]imply put, an extended leave of absence does not give a disabled individual the means to work; it excuses his not working.”

The Court specifically rejected the EEOC’s argument that a long-term medical leave of absence should qualify as a reasonable accommodation when the leave is (1) of a definite, time-limited duration; (2) requested in advance; and (3) likely to enable the employee to perform the essential functions of his or her job when the employee returns to work. That being said, the Court recognized that a brief period of leave to deal with a medical condition could be a reasonable accommodation in some circumstances if it is analogous to a part-time or modified work schedule. Reassignment to a vacant position may be a reasonable accommodation. The key is that the employee must be able to perform the essential functions of his or her job during the leave. An employer is not required to create a new position or to strip a current position of its principal duties in order to accommodate a disabled employee.

In its Strategic Enforcement Plan, the EEOC has indicated that it is targeting inflexible leave policies as being in violation of the ADA. With that in mind, employers would be well advised to review their managerial training and employment policies to ensure that they do not disseminate or enforce a policy that an employee who exhausts FMLA leave will automatically be terminated, with no exceptions. Employers must always perform a reasonable accommodation analysis in considering whether an employee on leave can perform the essential functions of any vacant position for which he or she is qualified. This process should continue throughout the leave, with the elimination of any requirement that the employee returns to work without any restrictions.

 

Written by:

Smith Debnam Narron Drake Saintsing & Myers, LLP
Contact
more
less

Smith Debnam Narron Drake Saintsing & Myers, LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.