By: Aaron Gelb

Last fall, the Seventh Circuit Court of Appeals (Illinois, Indiana and Wisconsin) handed down two decisions restricting the amount of leave employers must offer as an accommodation.   (Severson v. Heartland Woodcraft, Inc. and Golden v. IHA).  Management-side employment lawyers celebrated.  Employers breathed a sigh of relief.  The Seventh Circuit had finally given employers some much-needed certainty; a bright line, if you will.  Relying on these decisions, employers in the Seventh Circuit saw little risk rejecting requests for leave extending beyond 4 weeks.  Many employers, though, adopted a wait-and-see approach.  The US Supreme Court might take up the issue and reverse the Seventh Circuit.  To the surprise of many, the Supreme Court declined in April 2018 to weigh in on the issue.  Severson (and Golden) thus remain the law of the land—in the Seventh Circuit.  While these decisions are significant, employers must remain diligent when dealing with employees temporarily unable to do their jobs.

Leave as a Reasonable Accommodation

The US Equal Employment Opportunity Commission (“EEOC”) has long held that an employer must offer leave as a reasonable accommodation.   Typically, the EEOC recommends that employers first explore whether a modification of the workplace, duties or policies will enable the employee to continue doing their job.  If no such accommodation is available, the EEOC expects employers to offer a leave of absence for a definite amount of time so the employee can return to her position at the end of the leave.  When neither option is feasible, the EEOC maintains the employer should reassign the disabled employee to a vacant position for which she is qualified. 

While employers struggle at times to determine when a workplace modification is reasonable or how to go about evaluating reassignment options, no issue has caused as much consternation as leave as an accommodation.  Someone working with an assistive device (or in a different position) is still working.  An employee on leave, though, is not working.  When an employee is on leave, the employer must arrange coverage and, in many cases, make due with someone other than the person hired to do the job.  The two types of leave—block or intermittent—pose different sets of challenges.  And the courts have interpreted them differently.  The Severson and Golden cases, though, deal with leave for extended periods (blocks of time).  Intermittent leave is an issue for another day.

The Seventh Circuit Restricts the Use of Block Leave

The scenarios presented in the Severson and Golden cases have a familiar feel.  Both cases involved employees unable to return to work after using all their Family and Medical Leave Act (FMLA) leave.  Two weeks before his 12-weeks expired, Mr. Severson told Heartland his condition had not improved and he needed surgery.  The typical recovery time from the surgery, he said, was two months.  Heartland told Mr. Severson his employment would end when his leave expired.  They did, though, invite him to reapply.  Ms. Golden, like Mr. Severson, told her employer she might need as many as six more months of leave after she exhausted her 12 weeks of FMLA leave.  IHA agreed to give her four more weeks, then fired her when she was still unable to return to work after the additional leave period ended.  Rejecting the argument that a long-term leave of absence can constitute a reasonable accommodation if it is for a definite time period, the Seventh Circuit held that the ADA is not a medical leave statute.  Most significantly, the Severson court found that the “[i]nability to work for a multi-month period removes a person from the class protected by the ADA.”   Doubling down in Golden, the Seventh Circuit held that “[a] multimonth leave of absence is beyond the scope of a reasonable accommodation under the ADA…[such a request] remove an employee from the protected class under the ADA.”

Diligent HR Professionals Are Still Needed

Recently, an Illinois employer learned the hard way that citing Severson in their summary judgment papers does not guarantee victory.  In Rascher v. S&C Electric Co., the employer terminated Mr. Rascher when he sought to return to work after a 12-month leave, arguing that the ADA did not protect the employee because he had been on medical leave for almost 12 months before seeking to return to work.  The district judge wasted no time dispatching the employer’s arguments, labeling them “nonsense” in a tersely worded opinion.  Contrasting Mr. Rascher’s situation from that of Mr. Severson, the judge explained that the company terminated Mr. Rascher after his leave was over and he his doctor cleared him to resume his duties.  While the employer likely could have fired Mr. Rascher when he requested the long leave, it did not.  The operative question, according to the court, is whether the employee can work when the employer makes its decision.  Past leave is irrelevant.

So What Should You Do?

First, determine whether there are other types of leaves your employees can take.  If you offer employees personal leaves or sabbaticals, you would do well to make sure disabled employees can use those leaves as well.  Similarly, if your organization has a formal light duty program that enables employees injured on the job to return to work in less demanding positions, you should explore in your discussions with the disabled employee whether she can perform any of those positions.  Now, if your organization offers light duty work on an informal basis, you should still determine if any such positions are available, but you likely do not have to create one.

Second, you should try to find another position for your employee even when the leave sought is not reasonable.  While employers in the Seventh Circuit must explore transfer to a vacant position, other courts do not impose such a requirement.  If your employee is in a circuit that mandates non-competitive reassignment, there are a few rules of the road that you should observe.  Start by having a conversation with your employee.  In person is best.  Ask them about their skills and experience.  Find out what positions interest them.  Do not make assumptions.  Once you know what they can and want to do, find out what positions are open.  Then, discuss those positions with your employee.  Ideally, you will have one person in HR who serves as the point of contact for this person.  And, of course, you should document every interaction with your employee.  Don’t forget to confirm in writing the positions offered—if any—and the reasons given if the employee declines any of them.

Third, consider the impact of these decisions on employees outside the Seventh Circuit.  Severson and Golden apply only to employers in Illinois, Indiana and Wisconsin.  Several federal circuits agree with the EEOC’s position that extended leaves may be a reasonable accommodation.  The First, Sixth and Ninth Circuits, among others, have reached conclusions different from the Seventh Circuit in Severson and Golden.  If you have operations in these circuits or elsewhere, you should still engage in the interactive process when an employee requests an extended leave of absence.  You may well conclude that the leave sought presents an undue hardship, but you will have to marshal the evidence to support your conclusion.  Your reasoning will be second-guessed.  Your practices will be scrutinized.  You will be asked how long you waited to fill the position.  You may well prevail, but it will require hard work.

Finally, you should consider how denying extended leave requests will affect employee relations.  If you have employees all over the country, you may find it difficult having one rule for employees in Illinois, Indiana and Wisconsin, and another rule for everyone else.  And what about unions?  If you are worried about fending off an organizing drive, terminating an employee undergoing chemotherapy because he needs 6 weeks off may give the union the ammunition it needs to turn the tide.