Wildeman and St. Pierre: Case gives employers bright-line rule on ADA unpaid leave

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By Crystal S. Wildeman and Alyson St. Pierre

In an area of law focused on individualized inquiry, Indiana employers now have a bright-line rule thanks to a recent decision in our jurisdiction. In September 2017, the 7th Circuit Court of Appeals handed down Severson v. Heartland Woodcraft, Inc., 872 F.3d 476. The Court determined that a multi-month leave of absence (“LOA”) is not a reasonable accommodation required under the American with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq. Stated another way, an employee unable to work and in need of a multi-month LOA falls outside the protections of the ADA because he is not an otherwise “qualified individual.” The court’s adoption of such a bright-line rule provides a pro-employer approach to reasonable accommodation cases and splits the circuits on the topic. Because the United States Supreme Court declined to hear Severson in April of 2018, the circuit split will remain for now. Therefore, employment lawyers must be cautious when applying Severson outside the 7th Circuit.

”Reasonable accommodations”

The ADA and its Amendments Act of 2008 require that an employer with at least 15 employees provide reasonable accommodations, which enable qualified individuals with disabilities to perform the essential functions of their job, unless providing the accommodations would impose an undue hardship on the employer. The ADA’s purpose for providing reasonable accommodations is to remove workplace barriers so employees with disabilities can perform and receive equal employment opportunities. Examples of reasonable accommodations include:

• job restructuring;

• modifying work schedules and/or telework;

• changing supervisory methods;

• acquiring or modifying equipment;

• leave;

• providing qualified interpreters, and;

• reassigning an employee to a vacant position.

The ADA leaves the analysis of reasonable accommodations to the courts.The EEOC on unpaid leave

Depending on the circumstances, unpaid leave may be a reasonable accommodation. According to the EEOC, a leave of absence should be permitted if it causes no undue hardship on the employer. (EEOC Guidance on Reasonable Accommodation and Undue Hardship, No. 915.022) The EEOC encourages employers to consider providing unpaid leave even when “[T]he employee has exhausted the leave the employer provides as a benefit (including leave exhausted under a workers’ compensation program, or the FMLA or similar state or local laws).” The EEOC considers long-term leave a reasonable accommodation where it is definite, time-limited, requested in advance and likely to enable the employee to perform essential functions upon return. The EEOC also considers leave “reasonable” if it “seems reasonable on its face, i.e., ordinarily or in the run of cases” or “appears to be ‘feasible’ or ‘plausible,’” and meets the needs of the individual. This definition mirrors the Supreme Court’s decision in US Airways, Inc. v. Barnett, 535 U.S. 122 (2002).

How are reasonable accommodations analyzed?

Under Barnett, the judicial analysis of a reasonable accommodation begins with an objective, general inquiry into whether the proposed accommodation appears reasonable on its face. Then, the courts shift to a particularized inquiry into the reasonableness of the accommodation according to the specific facts. Until the 7th Circuit issued its opinion in Severson, most courts facing a reasonable accommodation issue post-Barnett focused their decisions on the particularized analysis.

How is the 7th Circuit’s analysis different?

The Severson court focused on the general inquiry step of the analysis, concluding multi-month LOAs contradicted the ADA’s purpose of enabling qualified individuals to perform the essential functions of their position. The case does not parallel other reasonable accommodation case analyses, which tend to focus on facts and result in narrow holdings. Instead, Severson’s holding guides 7th Circuit employers with marked parameters governing a multi-leave accommodation request. While short term leaves of “a couple days or even a couple weeks” may be reasonable accommodations, the Severson court drew the line at months of leave: “a multimonth leave of absence is beyond the scope of a reasonable accommodation under the ADA.” An individual who requires a multi-month leave is not a “qualified individual.” The court reminded that the ADA is not a leave statute. While the circuits agree requests for indefinite leave are not reasonable accommodations, until Severson, courts avoided creating rules about the length of leave. See e.g., Myers v. Hose, 50 F.3d 278 (4th Cir. 1995); Gantt v. Wilson Sporting Goods Co., 143 F.3d 1042 (6th Cir. 1998); EEOC v. Yellow Freight Sys., Inc., 253 F.3d 943 (7th Cir. 2001); Peyton v. Fred’s Stores of Ark., Inc., 561 F.3d 900, 903 (8th Cir. 2009); Taylor v. Pepsi-Cola Co., 196 F.3d 1106 (10th Cir. 1999). The Severson court’s establishment of a categorical exclusion on multi-month leave thus contradicted the holdings of some other circuits. See e.g., Garcia-Ayala v. Lederle Parenterals, Inc., 212 F.3d 638, 647 (1st Cir. 2000); Cehrs v. Northeast Ohio Alzheimer’s Research Center, 155 F.3d 775, 783 (6th Cir. 1998). And although the 10th Circuit acknowledged in Taylor v. Pepsi-Cola Co., 196 F.3d 1106, that leaves of absence beyond six months are usually unreasonable, the 7th Circuit took is the only circuit to exclude a multi-month leave.

Are there state law implications?

Critics of Severson have been quick to caution that it only holds precedential value for cases within its jurisdiction, in Indiana, Wisconsin and Illinois. Moreover, state statutes should be considered when advising an employer. Slight differences between the ADA and applicable state employment discrimination laws could affect an LOA analysis. Of the three states falling into the 7th Circuit’s jurisdiction, only Indiana enacted a mirror image of the ADA. Ind. Code. § 22-9-5-17; see also, 42 U.S.C. § 12111(9). Wisconsin and Illinois statutes follow the ADA’s general purpose, but vary from the ADA’s statutory language. See W.S.A. § 111.34; 775 I.L.C.S. § 5/2-101; see also, 56 Ill. Adm. Code § 2500.40. The Wisconsin statute requires a case-by-case determination, which could be construed to conflict with application of a general rule such as the one developed in Severson. Indiana courts likely will apply Severson because the language of Indiana’s disability discrimination act echoes the ADA. As of this writing, only 12 cases had cited Severson, all of which are federal court cases.

How can employers use Severson?

For 7th Circuit employers, Severson’s holding provides clear guidance: multi-month LOAs are not reasonable accommodations. Once an employee with a disability exhausts all leave to which he is entitled, the employer should consider the employee’s need for additional leave. If that need, combined with leave already taken, would result in several months of leave, the employer should consider Severson and applicable state law before granting additional leave. The employer also should explore possible reasonable accommodations that could enable the disabled employee to perform the essential functions of his job and, if not, whether there is a vacant position to which the employee may be reassigned.

This remains an issue worth watching. While some opine Severson is only as an outlier, it could also signal the beginning of a sea change in ADA analysis governing reasonable accommodations.•

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Crystal S. Wildeman is a partner and Alyson St. Pierre is an associate in the employment practice group at Indianapolis-based Wooden McLaughlin. Opinions expressed are those of the authors.

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