Leave ruling favors employersPosted On: Jan. 8, 2018 12:00 AM CST
A significant appeals court ruling that says employers are not obligated to provide indefinite leave under the Americans with Disabilities Act offers a welcome relief to employers within the court’s jurisdiction.
But the ruling in Raymond Severson v. Heartland Woodcraft Inc. does not comply with the U.S. Equal Employment Opportunity Commission’s position and disagrees with other courts, say experts, who believe the issue may ultimately be considered by the U.S. Supreme Court.
“The ADA is an antidiscrimination statute, not a medical leave entitlement,” says the Sept. 20 ruling by the 7th U.S. Circuit Court of Appeals in Chicago, which involves a worker who sought additional leave beyond the 12 weeks available under the Family and Medical Leave Act to recover from back surgery (see sidebar). “A long-term leave of absence cannot be a reasonable accommodation.”
The issue of administering leave has been a challenge for employers because of the uncertainty it creates as to when the employees will return to work, experts say.
This is particularly true for employers with workers in multiple states who are faced with the tasks of requesting medical documentation, updating files as they keep track of when employees can return to work and determining whether they need to hire temporary or permanent replacements, say experts.
Employers have been left “struggling to fill positions left temporarily vacant without knowing when is the right time to say ‘OK, it’s an undue burden,’” said Jessica D. Causgrove, an associate with Fisher & Phillips L.L.P. in Chicago.
“This is a very significant ruling — not just in the 7th Circuit, but it has reverberations around the country,” said Steven J. Pearlman, a partner with Proskauer Rose L.L.P. in New York.
“The EEOC has long taken the position that a long-term leave of absence is an appropriate, reasonable accommodation, and they have leveraged very significant actions and settlements on this theory,” he said.
“This is a direct refutation of the EEOC’s position” and a coup for employers, said Mr. Pearlman. The EEOC filed a brief supporting Mr. Severson in the 7th Circuit case.
The ruling distinguishes between accommodations that permit the employee to return to work and perform the job’s essential functions versus those that “essentially excuse the employee from doing any work,” and is a welcome ruling for employers who struggle with this issue, said Rufino Gaytán III, an associate with Godfrey & Kahn S.C. in Milwaukee.
“It paves the way for other courts to now follow in the 7th Circuit’s footsteps,” and says it agrees that months of leave of absence “may not be a reasonable accommodation,” said Ms. Causgrove. “Over the next few years, we could see more circuits turning to this case in particular.”
“It changes the dynamic,” and in at least some jurisdictions means employers will be able to analyze the issue from a different standpoint,” said David J. Rowland, a partner with Seyfarth Shaw L.L.P. in Chicago.
The EEOC’s position remains an issue, though.
“The EEOC’s been very aggressive about attacking any employer policy” that says a worker’s leave can be terminated at any fixed point in time, said Frank C. Morris Jr., a member of law firm Epstein Becker Green L.L.P. in Washington.
“While the EEOC doesn’t have guidelines as to how long the leave must be, there have been cases in the past where several months and even close to a year and beyond has been considered a reasonable accommodation,” Ms. Causgrove said.
Sage Knauft, a partner in Orange County, California, with WFBM L.L.P., which does business as Walsworth, said the EEOC’s position may change now that it operates under a Republican administration, but we “just don’t know how fast” that may happen.
“It’s been ingrained for so long that I don’t know it’s something that’s going to change on a dime,” he said.
The decision also “leaves open the question of what happens if you have intermittent time off for a short leave — what if it’s a couple of days or a couple of weeks?” said Mr. Pearlman.
“Eventually, it’s going to percolate to the Supreme Court,” said attorney Michael Soltis, a Ridgefield, Connecticut-based solo practitioner.
Observers say there may also be state and/ or local laws that set different standards than the 7th Circuit’s. The rule is likely pre-empted, for instance, in California, where “disability discrimination claims aren’t even filed under the ADA because the state law is so strong and employee-friendly,” Mr. Knauft said.
Michael Starr, a partner with Holland & Knight L.L.P. in New York, said he advises employers to consider permitting longer leaves of absence as an accommodation, “but to manage it very carefully so it doesn’t become burdensome.”
Mr. Soltis said he has advised employers for years that if employees are still unable to return to work at the end of their leave because of a medical issue, their approach should be: “Come see us and we’ll have a discussion.”
Experts also note that, in some cases, alternatives to time off such as light duty could satisfy both employer and employee.
Transfer to a vacant position or light duty “can be an accommodation,” said Brian L. McDermott, a shareholder with Ogletree, Deakins, Smoak & Stewart P.C. in Indianapolis.