The intersection between the Family Medical Leave Act (“FMLA”) and the Americans with Disabilities Act (“ADA”) is sticky, at best. Over the years, partners in my Firm and I have received phone calls that go something like this: “Hey, Lawyer. I have an employee who has been off work dealing with [insert medical condition]. He is supposed to be back next week, but now he is saying he needs more time off to deal with [aforementioned medical condition]. What do I do?” Good question. And the answer is not always clear.
This is precisely the set of circumstances the Seventh Circuit Court of Appeals considered in Severson v. Heartland Woodcraft, Inc., — F.3d —, 2017 WL 4160849 (Sept. 20, 2017). The short version of the opinion is that in the Seventh Circuit, long-term leave is not a reasonable accommodation under the ADA. The Seventh Circuit provided this useful quote: “The ADA is an anti-discrimination statute, not a medical-leave entitlement.” Now for the specifics.
The plaintiff worked a physically demanding job for the employer. Due to a non-work related injury, he took a 12-week medical leave under the FMLA. During his FMLA leave, the plaintiff and supervisory/HR personnel of the employer communicated regularly regarding his progress. Near the end of his 12-week FMLA leave, the plaintiff informed the employer that he would have to undergo back surgery (scheduled on the very day his FMLA leave expired) and that he would need at least two additional months off of work to recover. The employer subsequently informed the plaintiff that his employment would be terminated when his FMLA expired, but encouraged him to reapply when he was medically cleared to work.
Plaintiff went through the surgery, recovered and was fully cleared to return to work. However, instead of reapplying for a job with the employer, he sued, claiming that the employer discriminated against him in violation of the ADA by failing to accommodate his physical disability. Plaintiff pointed to three (3) accommodations the employer could have offered him but did not: (1) a two- or three-month leave of absence, (2) transfer to a vacant job or (3) a temporary light-duty position with no heavy lifting. The trial court granted summary judgment in favor of the employer on all claims, and the plaintiff appealed to the Seventh Circuit.
The ADA protects “qualified individuals” in the workplace, who are defined as “an individual who, with or without a reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.” The ADA also provides that a reasonable accommodation “may” (important word) include things like making existing facilities more readily accessible, job-restructuring, part-time or modified work schedules, reassignment to vacant position, along with a laundry list of other items. The Seventh Circuit noted that the use of the word “may” means that the concept of “reasonable accommodation” is flexible.
As noted by the Seventh Circuit, a “reasonable accommodation” is one that allows the disabled employee to perform the essential functions of the job. Therefore, a long-term leave of absence “cannot be a reasonable accommodation” because “not working is not a means to perform the job’s essential functions.” A long-term leave would excuse the employee from working, and thus the employee would not be a “qualified individual” under the ADA. If the employee simply cannot work, his protection is afforded by the FMLA’s 12-week medical leave, not the ADA.
NOTE: The Seventh Circuit was quick to note that a short period of additional leave beyond the FMLA 12-week period could be a reasonable accommodation in certain circumstances. “Intermittent time off or a short leave of absence – say, a couple of days or even a couple of weeks – may, in appropriate circumstances, be analogous to a part-time or modified work schedule,” which are two examples of “reasonable accommodation” under the ADA. The Seventh Circuit went on to say “But a medical leave spanning multiple months does not permit the employee to perform the essential functions of his job” and removes such employee from the class of persons protected by the ADA.
Transfer to Vacant Position
The Seventh Circuit dealt with this in one paragraph. The Plaintiff had the burden to prove that there were, in fact, vacant positions available at the time of his termination. He did not do that.
Temporary Light-Duty Work
The Seventh Circuit noted that an employer is not required to create a new job or strip job responsibilities from another employee in order to accommodate a disabled employee. The Court pointed to EEOC guidance which provides “[a]n employer need not create a light duty position for a non-occupationally injured employee with a disability as a reasonable accommodation.” However, if an employer has a policy of creating light-duty jobs for folks injured on the job, then the employer should also apply that same policy to folks injured away from work. In this case, the employer’s policy retained the option, totally at its discretion, to give workers injured on the job light-duty work, but the evidence showed that such light-duty positions were given infrequently and normally only lasted a couple of days. Therefore, since the employer had no policy requiring it to dole out light-duty positions, it was not required to provide this accommodation to the plaintiff whose injury was not work-related.
Readers of this post should remember this decision applies only in the Seventh Circuit (which includes federal courts in Illinois, Indiana and Wisconsin). While this case could be cited as persuasive authority in other jurisdictions, you will want to consult with your trusted employment attorney to see if there are any contrary decisions in your jurisdiction. Additionally, employers should take this opportunity to go back and review their handbook and policies to see how those deal with “light-duty” assignments.