Employer ADA Test Conundrum? Seventh Circuit Flip Flops on ADA Accommodation Ruling

The Seventh Circuit ruled that an employee’s extended medical leave request was “categorically unreasonable” under the ADA. However, what should an employer do when one of the Seventh circuit judges writes that prior decision is wrong and violates the ADA?

On September 20, 2017, in Severson v. Heartland Woodcraft, the Seventh Circuit affirmed summary judgment in favor of an employer that terminated an employee who requested a two to three month extended medical leave in addition to his 12 week FMLA leave. The Court applied a per se rule that an extended medical leave is categorically unreasonable as a matter of law and held that the employee is not a qualified individual under the ADA.

On October 17, 2017, the Seventh Circuit issued a per curiam, non-precedential, disposition order in Golden v. Indianapolis Housing Agency, (7th Circuit 2017, pursuant to Circuit Rules of the U.S. Court of Appeals for the seventh Circuit Rule 32.1, affirming summary judgment in favor of an employer on the basis of its decision in Severson. In an extremely detailed, concurring opinion, Judge Ilana Rovner stated that, while the Court is bound to follow Severson because it is the law of the Circuit, Judge Rovner believes that the Severson decision is wrong; is without any support from the text of the ADA; and violates the express language of the ADA which requires that an individualized assessment be conducted before a decision is made as to whether an accommodation is reasonable.

Here, we answer the question: what should an employer do in light of this recent Seventh Circuit case law?

Severson v. Heartland Woodcraft, Inc.

After working for Heartland Woodcraft, Inc. (“Heartland”) with stellar performance reviews for 6 years, Severson, who had suffered from chronic back pain for years, requested an FMLA medical leave. Heartland approved the leave. Two weeks before the 12 week leave was to end, Severson informed Heartland that he needed to have back surgery (which he had scheduled for the last day of his FMLA leave) and would need an additional two to three months to recuperate thereafter.

Heartland waited two weeks and, on the day before Severson’s surgery, notified him that his employment would be terminated upon expiration of his FMLA leave, and said that he could reapply when he was able to return to work.  Despite the fact that his doctor authorized him to return to work with restrictions 51 days after the surgery, and then authorized him to return to work without any restrictions 49 days thereafter, Severson did not reapply for employment. Instead, he sued Heartland for failure to provide a reasonable accommodation.

The district court granted summary judgment in favor of Heartland. On appeal, the Seventh Circuit affirmed and stated that a “long-term leave of absence cannot be a reasonable accommodation” and that since such an employee is not able to work with or without reasonable accommodations he is not “a qualified individual” under the ADA. Severson, * 2, 7-9. The Seventh Circuit relied upon its 2003 decision in Byrne v. Avon Products, Inc., 328 F. 3d 379, 381 (7th Cir. 2003) in which the employee had major depression and, as a result, fell asleep at work and isolated himself from other employees from November 1998 through mid-January 1999. He never requested an accommodation (because he was unable to do so), although his sister told the employer that he “is very sick.” He was terminated for failing to show up for a meeting to discuss his behavior. He then sued for both ADA failure-to-accommodate and violation of the FMLA. The district court granted summary judgment in favor of the employer. The Seventh Circuit affirmed the grant of summary judgment as to the ADA claim but reversed the grant of summary judgment as to the FMLA claim.

The Byrne court stated that from mid-November 1998 through mid-January 1999 Byrne wanted to not have to work. The Court said that was not a reasonable accommodation under the ADA, as a reasonable accommodation must enable an employee to work. While intermittent conditions that require time off for brief periods can be a reasonable accommodation, an extended period of time off is not. Byrne, at 380-381.

Golden v. Avon Prods. Inc.

On October 17, 2017, the Seventh Circuit issued a per curiam, non-precedential, disposition order in Golden v. Indianapolis Housing Agency, (7th Circuit 2017), pursuant to Circuit Rules of the U.S. Court of Appeals for the Seventh Circuit Rule 32.1, affirming summary judgment in favor of the employer on the basis of Severson. In an extremely detailed, concurring opinion, however, Judge Ilana Rovner stated that, while the Seventh Circuit Judges are bound to follow Severson because it is the law of the Circuit, Judge Rovner believes that the Severson and Byrne decisions are wrong; are without any support from the text of the ADA; and violate the express language of the ADA which requires that an individualized assessment be conducted before a decision is made as to whether an accommodation is reasonable. Golden, at *2-3.

Judge Rovner noted that if the ADA reasonable accommodation standard can require that an employer provide intermittent time off work due to flare ups for chronic conditions spanning a period of years, allowing an employee to have an extended, one-time, multi-month leave of absence that enables the employee to return to work without restrictions should not categorically be an “unreasonable accommodation” as a matter of law under the ADA. While such a request might be an “undue hardship” to the employer, and thus a possible defense under the ADA, the Severson court’s holding that a multi-month leave is per se unreasonable violates the ADA. Id.

Takeaway

It is important to note that while the Golden decision is labelled a non-precedential disposition, pursuant to Circuit Rules of the U.S. Ct. of Appeals for the Seventh Circuit Rule 32.1, the Federal Rules of Appellate Procedure 32.1 (a) and (b) nevertheless permit parties to cite the Golden decision and the detailed reasoning in Judge Rovner’s vigorous concurrence.

While, at first glance, it appears that the Seventh Circuit’s reaffirmance of Byrne in the Severson decision gives employers wide latitude to apply a per se test as to whether an employee is a “qualified individual” under the ADA and to automatically terminate employees who seek an extension of medical leave upon expiration of their FMLA leave, employers should exercise caution and should not apply a per se test when terminating an employee who seeks such a medical leave extension. Instead, employers should continue to conduct and document an individualized assessment before terminating such an employee. This seems particularly wise since the courts in Byrne and Severson did not define or provide any parameters whatsoever for what constitutes an “extended medical leave,” and that issue may indeed be very fact-specific and may depend upon the nature of the employee’s job, the nature of the employer’s business, and the hardship that the employer may incur if the employer were to grant the requested leave to the employee.

Taking the time to carefully consider and document the employer’s individualized assessment will show that the employer has attempted in good faith to fully comply with the ADA in all respects and, even after Severson, it remains the wisest course of action.

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