March 07, 2018 Articles

Is a “Long-Term Leave of Absence” a Reasonable Accommodation?

Growing disagreement between the EEOC and the courts creates uncertainty

by Carolyn A. Davis and Devin M. Spencer

What are an employer’s obligations to an employee who has exhausted his or her 12 weeks of leave under the Family and Medical Leave Act (FMLA) but whose medical condition still prevents him or her from returning to work? The Americans with Disabilities Act of 1990 (ADA), as amended, may require the employer to provide the employee with additional time off as a reasonable accommodation. The question of how much additional leave is a growing source of conflict among the federal appellate courts and the U.S. Equal Employment Opportunity Commission (EEOC). The current legal landscape of where the ADA’s “reasonable accommodation” requirement picks up after the FMLA leaves off is murky at best, leaving employers without clear direction on the issue.

Almost every federal appellate court explicitly has held that leave is a reasonable accommodation under the ADA. See, e.g., Garcia-Ayala v. Lederle Parenterals, Inc., 212 F.3d 638, 648–50 (1st Cir. 2002); Graves v. Finch Pruyn & Co., Inc., 457 F.3d 181, 185 (2d Cir. 2006); Walton v. Mental Health Ass’n of Se. Pa., 168 F.3d 661, 671 (3d Cir. 1999). When a leave of absence is combined with FMLA leave, however, the courts are far less clear on what is required of the employer.

In 2016, the Sixth Circuit held that “temporary leave may indeed be a reasonable accommodation in the ‘appropriate circumstances.’” Stallings v. Detroit Pub. Schs., 658 F. App’x 221 (6th Cir. 2016). The Fifth and Ninth Circuits also have taken the position that additional leave may be a reasonable accommodation after an employee has exhausted FMLA leave, but taking leave without a specified return date is not. Moss v. Harris Cty. Constable Precinct One, No. 16-20113 (5th Cir. 2017); Escriba v. Foster Poultry Farms, Inc., 743 F.3d 1236 (9th Cir. 2014). In early 2017, the First Circuit held that a leave of absence can be a reasonable accommodation “in some circumstances,” although the court ultimately concluded that the plaintiff failed to show that her specific request for an additional 12 months of leave was reasonable. Echevarria v. AstraZeneca Pharm. LP, 856 F.3d 119 (1st Cir. 2017).

The Seventh Circuit, however, recently deviated from the holdings of its sister circuits. The court held that a “long-term leave of absence” after an employee has exhausted the required 12 weeks of FMLA leave is not a reasonable accommodation. Severson v. Heartland Woodcraft, Inc., 872 F.3d 476 (7th Cir. 2017). The court reasoned that an employee who needs a long-term leave of absence cannot work and therefore is not a qualified person with a disability under the ADA. While Severson provides some favorable reasoning for employers, it is also important to note what the Seventh Circuit did not address in its decision. The court did not rule that all requests for an unpaid leave of absence are an unreasonable accommodation and may be rejected by employers. For example, an employer may be required to grant an employee’s request for a few days or weeks off from work as a reasonable accommodation under some circumstances.            

Notably, the Severson decision departs from the EEOC’s position that long-term medical leave qualifies as a reasonable accommodation where the leave is requested in advance, is for a specific duration, and likely enables the employee to perform the job upon return. The EEOC’s May 2016 guidance clarifies that employers must provide employees with disabilities equal access to leave as an accommodation on the same basis as similarly situated employees without disabilities and may also be required to modify policies to provide leave for an employee with a disability, even where an employer typically does not offer leave to other employees under its policies. The guidance addressed several related issues that may arise when dealing with leave as a reasonable accommodation, including requests for “indefinite” leave, analyzing undue hardship, maximum leave policies, and return-to-work issues.

More recently, the EEOC demonstrated its adherence to this position in a $1.7 million settlement with the United Parcel Service (UPS). In August 2017, the EEOC settled an eight-year-old lawsuit that challenged UPS’s policy of discharging workers who cannot return to work after a medical leave of one year. EEOC v. United Parcel Serv., Inc., No. 1:09-cv-05291 (N.D. Ill.). Previously, in 2014, the Northern District of Illinois had rejected UPS’s argument that its maximum 12-month leave policy was acceptable under the ADA because regular attendance is an essential job function for its employees.

This settlement was a “win” for the EEOC in its effort to restrict employers’ use of maximum leave policies. The EEOC has long taken the position that leave can be a reasonable job accommodation and that although it is the EEOC’s position that maximum leave policies are not per se violations of the ADA, an employer may be required to make exceptions to such policies for employees with disabilities. Such exceptions include potentially granting leave beyond the amount specified in a maximum leave policy. The EEOC will scrutinize any employer leave policy that cuts off leave after a predetermined time period. In spite of this long-held position, the EEOC has continued to receive charges challenging maximum leave policies.

The amount of leave that an employer is required to provide to an employee as a reasonable accommodation will continue to be the subject of debate and may depend on the state where the employer is located. In light of the current conflicting appellate rulings and the EEOC’s guidance, employers are reminded of the following:

  1. While an employer may have a leave policy providing a “maximum” amount of leave, it may have to make exceptions for an employee with a disability. Employers outside the Seventh Circuit should proceed with caution in relying on Severson to deny an employee’s request for additional leave, as this decision is inconsistent with decisions in virtually every other circuit court and with the EEOC’s position on the issue.
  2. These policies may violate the ADA when they effectively require the automatic termination of an employee with a disability after he or she reaches a prescribed, inflexible leave limit.
  3. An employer should use the interactive process to ensure additional leave is not available as a reasonable accommodation before terminating an employee under a maximum leave policy.

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