For years, we have provided our clients with the following advice about leaves under the Americans with Disabilities Act:   “Do not enact a policy or practice of automatically terminating an employee based on a set amount of leave requested.”   This advice was based on strong EEOC guidance and cases in which courts sided with employees who were terminated pursuant to such policies.  This advice would ensure that our clients would not find themselves in a position like delivery giant UPS, which settled with the EEOC for millions because the company adopted a policy of terminating employees after one year of leave.
 
Rather than adopt a bright-line rule, employers were required to assess each request on a case-by-case basis to determine whether the request posed an undue hardship for the employer. For years, the only definitive guidance employers had for what constituted an unreasonable request for leave was a leave of indefinite or unknown duration.  All other requests were fair game. Until now.
 
Recently, the Seventh Circuit Court of Appeals issued a decision that for the first time provides parameters for what constitutes a “reasonable” leave. In the case (Severson v. Heartland Woodcraft, Inc.), the employee used all of his FMLA entitlement. Out of FMLA leave, the employee requested an additional “2-3 months” of leave as a reasonable accommodation. The company denied the leave and terminated employment. The employee sued, alleging that the employer violated the Americans with Disabilities Act by failing to provide a reasonable accommodation. The court, in finding for the employer, stated that:  “...the ADA is an antidiscrimination statute, not a medical-leave entitlement.”   The court explained that a reasonable accommodation is “expressly limited to those measures that will enable the employee to work.  “An employee who needs long-term medical leave  cannot  work and thus is not a 'qualified individual' under the ADA.” 
 
What does this mean for employers?   For employers in Wisconsin, Illinois, and Indiana (the Seventh Circuit), this decision establishes a bright-line rule - leaves of 2-3 months are not reasonable under the ADA and may be denied. Be cautious however as short–term leave continues to be a reasonable accommodation. Employers must still engage in an interactive dialogue to determine what accommodations (including leave) a qualified employee needs and must provide the accommodation unless it poses an undue hardship.
 
Practical Next Steps:
  • We recommend that all employers institute a process for engaging in the interactive dialogue with employees and their treating doctors. The ADA restricts the types of questions employers can ask employees and their doctors related to the employee’s disability. Creating a checklist of questions for the employee to provide to the healthcare provider can be an important first step in engaging in the interactive dialogue.
  • Review and update your handbooks and policies, as necessary. If your company does not already have one, consider creating an ADA Open Door Policy. A clear ADA Policy establishes how employees should request accommodation and defines employee and employer responsibilities in terms of engaging in the interactive dialogue. 

We can assist you with next steps and to navigate FMLA and ADA leave requests. Our firm is available to create ADA Policies and Standard Operating Procedures for HR as well as checklists that can be provided to employees and their doctors as part of the interactive dialogue. Please contact us for more information on creating policies and checklists.   We can help.

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