If your employee uses all 12 weeks of FMLA leave and still can’t return to work, do you have to leave his/her job open? According to the EEOC, and many courts, yes. The Seventh Circuit, however just handed down a ruling that seems to say “No”. You may be asking, “What do you mean seems to say? Either it does or it doesn’t”. Well, I understand the thinking, but bear with me here. As you know, employment cases most often turn on their specific facts and this one is no exception. We’re going to look at these facts, what the court said, and of course, what you, as employers can and should take from this case, so read on…
(image from hrhero.com)
The case is Severson v Heartland Woodcraft Inc. Mr. Severson worked for Heartland as a fabricator of retail display fixtures. He had a chronic back condition that, up until 2013 did not interfere with his ability to perform his essential job functions, despite the significant physical demands the position placed on him. Due to performance issues, Heartland sought to move him to a second-shift lead position. Included among the position’s other requirements, Mr. Severson was frequent lifting of product or material weighing 50 pounds or more. One fine day, Mr. Severson, while at home, pulled his back out, thereby aggravating his pre-existing condition. You can probably see where this is going…
Mr. Severson took 12 weeks’ FMLA leave. During that time, his doctor tried treating him with steroids, but to no avail. Two weeks before his expected return date, Mr. Severson advised Heartland that he would need back surgery, and that the expected time for recovery was two to three months. He therefore requested extended leave time. Heartland denied his request. While Heartland terminated his employment, it did invite him to re-apply when he was medically cleared to work. About 4-6 weeks later, Mr. Severson’s doctor cleared him to return to work on light duty, and about 6-8 weeks later the doctor cleared him to return to work without restrictions. Mr. Severson did not re-apply for employment, but instead sued, alleging discrimination under the ADA by failing to accommodate his disability.
Both the federal district and appeals courts agreed with Heartland’s position that Severson , being unable to return to work, was not a qualified individual with a disability and therefore not entitled to the ADA’s protections. To be fair, however, Mr. Severson did propose other reasonable accommodations, namely transfer to a vacant position, or temporary assignment to a light duty position. The problem here, according to the court, is that Mr. Severson failed to prove that any such position was available. In requesting temporary re-assignment or light duty, the burden is on the employee to prove that such a position exists.
What about the court’s ruling on extended leave? As I mentioned above, the EEOC and most courts take the position that extended leave may be a reasonable accommodation under the ADA/ADAAA. This court’s reasoning was that reasonable accommodations are about enabling an employee to perform his/her job functions, whereas the extended leave requested here was about enabling Mr. Severson not to work. The court also reminded everyone that the ADA is an anti-discrimination statute, not a medical leave statute.
Now don’t get too excited. The court did clarify that intermittent time off, or short-term absences, “say a couple of days or even a couple of weeks” might be a reasonable accommodation under the ADA. In other words, while one might not automatically be entitled to longer-term extended leave as a reasonable accommodation under the ADA, neither does that mean that an employer can automatically fire an employee who exhausts his/her FMLA leave time and still cannot return to work. You must still do an individualized assessment. You must still consider the request for extended leave as you would any reasonable accommodation request, engage in the interactive process, and determine either if the request itself is reasonable or if an equally effective alternative exists.
Frankly, this case might well have produced a different result if Mr. Severson had re-applied for employment, a position for which he was qualified was available and Heartland had rejected his re-application. Remember also that the burden was on him to prove that another vacant position or light-duty assignment was available, and he did not do so. Had he presented such proof, then again, the ruling here would likely have been different.
So here’s the bottom line: This case is interesting, but may not really change much. You still need to look at overlapping leave laws. You still need to consider the possibility that extended leave (after FMLA leave) may be a reasonable accommodation under the ADA.
For more information on the different employee leave laws and how to deal with potential overlap, recordings of my webinar, Navigating the Overlap in Employee Leave (FMLA, ADA and Workers’ Comp), recordings are now available. (Click the title for more info).
OK, that’s all I’ve got for now. See you next week!
Contents of this post are for educational/informational purposes only, are not legal advice, and do not create an attorney-client relationship. Consult with competent employment counsel in the state(s) in which you employ people with your specific questions.
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