Dealing with FMLA, ADA leave in a post-Severson landscape
Late last year, the 7th U.S. Circuit of Appeals threw employment law experts for a loop, and they’re still analyzing the ramifications.
The court's opinion in Severson v. Heartland Woodcraft, Inc. has called into question a widely accepted premise in the industry: That the Americans with Disabilities Act (ADA), as a reasonable accommodation, can require leave beyond what the Family and Medical Leave Act (FMLA) requires.
In Severson, an employee took 12 weeks of FMLA leave but, following surgery, requested an additional two to three months. Instead of granting the extra leave as an ADA accommodation, as many in HR have been taught to do, the employer refused the employee’s request and fired him. He sued and, upon reviewing the case, the 7th Circuit sided with the employer, saying that "a multimonth leave of absence is beyond the scope of a reasonable accommodation under the ADA."
Uncertainty in the courts
The Severson ruling was hailed as a “huge win” for employers, though it only has an immediate legal impact on states within the 7th Circuit: Wisconsin, Illinois and Indiana. That court may not have the last word, however; the U.S. Supreme Court has received a petition for a writ of certiorari but has neither granted nor denied it as of this writing.
That situation aside, employers were previously really only looking for one clarification from the courts, according to Terri Rhodes, CEO of the Disability Management Employer Coalition (DMEC). “The courts are saying to employers, you can't just give employees 12 weeks of leave,” she explained. “If they need more time to get back to work, you have to grant them this extra time under ADA. What’s been very confusing is, well, how much time?”
For employment law attorney Melissa Zinkil, a partner at Akerman LLP, the answer to that question — going by Severson — would seem to exclude multi-month leave periods, even though numerous other circuits have entertained extended leave under the ADA. “It’s really kind of a gray area still,” said Zinkil, “and it still needs to be looked at on a case-by-case basis.”
The interactive process isn’t going anywhere
Despite the intrigue surrounding the Severson case, the playbook for compliance officers shouldn’t change much, if at all. Employers are still expected to engage in an interactive, good-faith process to find accommodations that allow workers with disabilities to do their jobs.
“You have to be careful,” Zinkil said. “Everything starts with having familiarity with the law, having a clear policy, revisiting that policy and re-reading it, and maybe having somebody else re-read it to make sure there's not any conflicting language in there between policies.”
And when it comes to accommodations and the interactive process, communication is key — especially when leave is involved. That’s not a pass to harass an absent employee at every turn, but Rhodes says the main goal should be to let the employee know that you care and are available if they need anything; it could be something as simple as a “get well soon” letter with the agreed-upon date for the employee’s return and a request that the employee update you if anything changes.
“And if it looks like they're not going to be able to get back to work within the amount of leave time that's available to them, then the discussion is 'what do we need to do?,'” Rhodes said. “Often what happens is employers wait until the eleventh hour, and then they're trying to get information. And there's been no conversation, so employees are at a loss — they don't want to lose their job.”
Extended leave also isn’t the only acceptable ADA accommodation for those who’ve exhausted their allotted FMLA time but still can't return to their original job full time. Bringing an employee back in a light-duty capacity, or even removing marginal functions from his or her existing job may be reasonable, Rhodes said.
Don’t forget about your managers
Training remains key, too. One of the biggest missteps an employer can make is not involving direct management in the leave process, Rhodes said. A lack of manager and supervisor training on the issue are among the points of interest for workplace investigations by both the U.S. Department of Labor and the U.S. Equal Employment Opportunity Commission.
The goal is not to make managers and supervisors experts; after all, employees probably won’t inform their managers of their intention to “invoke their rights under FMLA” in that exact manner. “What we want is to give them that 30,000-foot [perspective]: What employee's rights are, what the employer's responsibilities are, and how to recognize when an employee needs to take a leave of absence,” Rhodes said.
Ultimately, said Zinkil, employers may want to train supervisors to recognize accommodation and leave requests and instruct them to escalate those requests to HR.
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