by W. Anthony Andrews (Winter 2018)
The Seventh Circuit Court of Appeals, recent decision in Severson v. Heartland Woodraft, 872 F.3d 476 (7th Cir., 2017), rejects the notion that a months-long leave of absence can be a reasonable accommodation under the Americans with Disabilities Act (“ADA”).
The plaintiff, Raymond Severson, worked for Heartland Woodcraft as a fabricator of retail display fixtures from 2006 to 2013. Over time, he was promoted from supervisor to operations manager. Because he performed poorly in the latter position, he was demoted to a second-shift “lead” position on June 5, 2013. The new position required frequently lifting materials and product weighing 50 or more pounds.
Severson suffered from back pain since 2005 and, in 2010, was diagnosed with back myelopathy. At times, he experienced severe flare-ups that made it difficult to work. On the day that he was notified of his demotion, Severson wrenched his back at home, aggravating a preexisting condition. He left work early and requested a 12-week medical leave under the Family and Medical Leave Act (“FMLA”) to address his serious back pain.
Over the summer, he periodically submitted doctor notes to inform Heartland that he was unable to work due to multiple herniated and bulging discs in his lumbar spine. Heartland’s general manager and human resources manager each remained in regular phone and email contact with Severson and approved his continued requests for FMLA leave.
Severson’s 12-week FMLA entitlement expired on August 27, 2013. On August 13, 2013, Severson notified Heartland that he was scheduled to undergo disc decompression surgery on August 27, 2013. He requested a two-month extension of his medical leave. In a telephone conversation the day before surgery, Heartland’s management representatives informed Severson that his employment would end when his FMLA expired on August 27, 2013. They told Severson that he could reapply with the company when he recovered from the surgery and was cleared to return to work.
Severson had the surgery as scheduled. Heartland terminated his employment that day. On December 5, 2013, Severson was cleared to return to work without any restrictions. Instead of reapplying at Heartland at that time, Severson sued the company. He alleged that Heartland discriminated against him in violation of the ADA by failing to accommodate his physical disability.
Severson claimed that the ADA required Heartland to grant him (1) a two- or three-month leave of absence as a reasonable accommodation; (2) a transfer to a vacant job; or (3) a temporary light-duty position with no heavy lifting. The trial judge granted Heartland’s motion for summary judgment, and the instant appeal ensued.
On appeal, the court affirmed the trial court decision in favor of the company. Regarding Severson’s allegation that the company should have granted him a months-long leave of absence, the court stated, “The ADA is an antidiscrimination statute, not a medical-leave entitlement.” The court reaffirmed a 2003 decision, Byrne v. Avon Prods., Inc., 328 F.3d 379, 381 (7th Cir. 2003), in which the court ruled that because an employee who needs long-term medical leave cannot work, such an individual is not a “qualified individual” under the ADA.
While the concept of a reasonable accommodation is flexible, and the examples listed in the federal law are illustrative, the key to a reasonable accommodation is that it allows a disabled individual to perform the essential functions of the employment position. If the proposed accommodation does not make it possible for the employee to perform the essential functions of his job, the accommodation would not be reasonable. For this reason, a long-term leave of absence cannot be a reasonable accommodation under the ADA.
The Byrne decision left open the possibility that a brief period of leave to deal with a medical condition could be a reasonable accommodation in some circumstances. The Equal Employment Opportunity Commission (“EEOC”) filed an amicus curia brief in support of Severson, asking the court to reverse the trial court ruling. The EEOC argued 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 job functions when he returns. According to the EEOC, the duration of the leave would be irrelevant as long as the individual could do his or her job upon return from the leave. The Seventh Circuit rejected the EEOC’s interpretation, stating that it would transform the ADA into a medical leave statute, essentially creating an open-ended extension of the FMLA.
The court also rejected Severson’s second argument, that Heartland should have transferred him to a vacant position. Reassignment to a vacant position may be a reasonable accommodation under the ADA. Yet, Severson did not meet his burden of proving that any vacant positions existed at the time of his dismissal.
Finally, the court rejected Severson’s third argument, that Heartland should have temporarily assigned him to a light-duty position. It is generally understood that employers do not have to create a light duty position for a non-occupationally injured employee with a disability as a reasonable accommodation. EEOC Enforcement Guidance: Workers’ Compensation & the ADA, 2 EEOC Compliance Manual (CCH) ¶6905, at 5394 (Sept. 3, 1996), 1996 WL 33161342, at *12. Yet, if an employer has a policy of creating light-duty positions for employees who are occupationally injured, then the same benefit should be extended to a disabled employee who was not occupationally injured, unless the employer can show undue hardship.
Here, the court concluded that Heartland did not have a policy of providing light-duty positions for employees who suffered work-related injuries. The company retained the option, in its discretion, to give occupationally injured employees temporary duties on an ad hoc basis if such work were available. Such assignments were infrequent and generally lasted no longer than two days. The court concluded that they were essentially acts of grace and did not constitute a policy whereby light-duty positions had been established for employees injured on the job.
Qualified employees may be entitled to a medical leave under the FMLA, the employer’s policies or an applicable collective bargaining agreement. The Severson case is a good reminder that the Americans with Disabilities Act cannot be used to create an open-ended extension of the FMLA. Because of the interactions among the FMLA, the ADA, workers’ compensation laws, and other possible policies or contracts, we recommend that you contact one of the firm attorneys if you have questions about an employee’s leave request.