When Does The ADA Require Granting Unpaid Leave?

December 4, 2017 at 9:10 am Leave a comment

Image result for employee on long term leaveLet’s say you have an employee recovering from back surgery who is nearing the expiration of his medical leave. He requests an additional two to three months of unpaid leave under the Americans With Disabilities Act to recover. Are you violating the Americans With Disabilities Act if you don’t provide this accommodation? Historically, the answer to that question would have been probably, but recent cases decided by the Court of Appeals for the 7th Circuit indicate that employers may have more flexibility in this area than previously thought.

First, let’s remember that under the Americans With Disabilities Act, it is illegal to discriminate against a qualified individual on the basis of a disability. A qualified individual is an individual who with or without reasonable accommodation can perform the essential functions of a job (42 USC 1211). The question is, under what circumstances does a request for long-term unpaid leave constitute a reasonable accommodation?

In Severson v. Heartland Woodcraft, Inc., 872 F.3d 476, 33 AD Cases 1113 (7th Cir. 2017), an employee sued under the ADA after his request for an addition 2-3 months of unpaid leave was denied. Crucially, the Equal Employment Opportunity Commission joined in his lawsuit. It argued that the company’s actions were inconsistent with its own “long standing interpretation” of the ADA, under which it had interpreted a reasonable accommodation to include the provision of unpaid leave, at least for a set duration of time.

But in Heartland as well as another case, Golden v. Indianapolis Hous. Agency, No. 17-1359, 2017 BL 371274, 33 AD Cases 1219 (7th Cir. Oct. 17, 2017), the Court of Appeals for the 7th Circuit has flatly rejected this interpretation. For example, in upholding Heartland Woodcraft’s decision to fire the employee, the Court held that a “reasonable accommodation” is one that allows the disabled employee to “perform the essential functions of the employment position.” § 12111(8) . If the proposed accommodation does not make it possible for the employee to perform his job, then the employee is not a “qualified individual” as that term is defined in the ADA.” Since there are no conditions under which the employee could return to work, he is not a qualified employee.

Does this mean that no accommodation for time off under the ADA needs to be accommodated? Not at all. In making its rulings, the 7th Circuit pointed out that “[t]ime off may be an apt accommodation for intermittent conditions. Someone with arthritis or lupus may be able to do a given job even if, for brief periods, the inflammation is so painful that the person must stay home…Intermittent time off or a short leave of absence—say, a couple of days or even a couple of weeks”—may be appropriate in certain circumstances. “But a medical leave spanning multiple months does not permit the employee to perform the essential functions of his job.”

Does this ruling mean that you can change your policies immediately? Not without talking to your attorney please. For one thing, the 7th Circuit does not have jurisdiction over New York. For another thing, these cases leave open the question of just how much time has to be requested before an employee no longer gets ADA protection. Finally, the involvement of the EEOC and the Court’s split with that agency’s traditional interpretation, increases the likelihood that you may see this issue end up before the Supreme Court.

But I’m bringing this to your attention because I’m told by our own in-house HR consultant that the issue addressed in these cases is one with which credit unions frequently have to deal and the cases were recently highlighted in this employment law blog by Bond Schoeneck & King.

Entry filed under: HR. Tags: , .

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Authored By:

Henry Meier, Esq., Senior Vice President, General Counsel, New York Credit Union Association.

The views Henry expresses are Henry’s alone and do not necessarily reflect the views of the Association. In addition, although Henry strives to give his readers useful and accurate information on a broad range of subjects, many of which involve legal disputes, his views are not a substitute for legal advise from retained counsel.

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