28 NOVEMBER / DECEMBER 2017 HUMAN RESOURCES ADA Not a Medical Leave Entitlement Statute According to Seventh Circuit Debra A. Mastrian Partner SmithAmundsen LLC dmastrian@salawus.com SmithAmundsen LLC is a Diamond Associate Member of the Indiana Bankers Association. Article author Employers are sometimes faced with the situation where an employee has exhausted leave under the federal Family Medical Leave Act (FMLA), but is still not able to return to work. While FMLA obligations may end at that point, the U.S. Equal Employment Opportunity Commission (EEOC) has long taken the position that terminating the employee without considering offering additional leave may violate the federal Americans with Disabilities Act (ADA). Under the ADA, it is unlawful to discriminate against a qualified individual on the basis of a disability. A qualified individual is an individual who, with or without reasonable accommodation, can perform the essential functions of his or her job. Employers must reasonably accommodate a qualified individual with a disability, unless the accommodation causes an undue hardship. Time off from work has been recognized as one form of reasonable accommodation, according to EEOC guidance and prevailing case law in various federal circuits, when the leave is of a definite, time-limited duration and is likely to enable the employee to perform all essential job functions upon return. There is no bright line rule as to how much leave is considered reasonable; instead, the EEOC has maintained that employers must consider each request on a case-bycase basis and determine whether the leave would impose an “undue hardship.” If it does not impose an undue hardship, then the leave must be granted. However, in Severson v. Heartland Woodcraft, Inc., Case No. 153754 (Sept. 20, 2017), the Seventh Circuit Court of Appeals (which governs Indiana, Illinois and Wisconsin) recently took a position contrary to this EEOC guidance and prevailing precedent in other federal circuits, ruling that an employee who required multi-month leave after his FMLA leave expired was not protected by the ADA. In Severson, the employee worked a physically demanding job as a fabricator. He exhausted his FMLA leave to deal with back pain. Shortly before his FMLA leave expired, the employee notified his employer that he needed back surgery. The employee requested an additional two to three months of unpaid leave to recover from the surgery. The employer denied his request, terminated his employment, and invited him to reapply once he was medically cleared to return to work. The employee did not reapply after he received clearance to return to work and instead sued his employer for disability discrimination, claiming that the employer violated the ADA by failing to give him the additional two to three months of leave as a reasonable accommodation. The Seventh Circuit declined to consider the “undue hardship” analysis, finding that an employee who needs extended medical leave cannot work and thus is not a “qualified individual” under the ADA. The Court reasoned that the ADA is intended to require reasonable accommodations for those who are able to work, while the FMLA is intended to provide extended medical leave to employees who cannot work. The Court expressly stated that “[t]he ADA is an
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