In "Other Duties as Assigned," HR Dive editor Kate Tornone weighs in on employment trends, compliance best practices and, of course, the situations that require you to go above and beyond your normal duties. Today: An Americans with Disabilities Act ruling that will make you question everything you've been taught about reasonable accommodations.
A couple of weeks ago, a federal appeals court ruled that "a multimonth leave of absence is beyond the scope of a reasonable accommodation under the ADA" (Severson v. Heartland Woodcraft, Inc., No. 15-3754 (7th Cir. Sept. 20, 2017)).
As an HR professional, this is probably the kind of ruling you dream about — the kind that has the potential to streamline your workflow (not to mention allow to you fill open jobs). You know the drill: an employee who is about to exhaust his 12-week Family and Medical Leave Act (FMLA) allotment tells you he can't come back to work yet.
You ask (1) how much more time he needs; and (2) how the extra leave will enable him to return to work. You get the answers you're looking for (perhaps he took leave for an injury, but conservative treatment didn't help and now he needs surgery, like the employee in Severson) and you approve the leave because, after all, everyone has told you over and over again that the ADA requires leave for workers with disabilities, even if they're ineligible for all other job-protected leave.
You've been told this by everyone: Me, your lawyer, the U.S. Equal Employment Opportunity Commission (EEOC), and the courts.
Now, the tide could be shifting. The ADA certainly may require short leaves as a reasonable accommodation, the 7th Circuit said in Severson; but "[l]ong-term medical leave is the domain of the FMLA," the three-judge panel wrote.
Employment lawyers said the ruling "sent shockwaves" through the industry, and that it was "a huge win" for employers. It also represented a pretty big blow to the EEOC's position, with the 7th Circuit calling it out specifically. "If, as the EEOC argues, employees are entitled to extended time off as a reasonable accommodation, the ADA is transformed into a medical-leave statute — in effect, an open-ended extension of the FMLA," the court said. "That’s an untenable interpretation of the term 'reasonable accommodation.'"
So what now? I asked Terri Rhodes, CEO of the Disability Management Employer Coalition, for her thoughts. For starters, if you're dealing with an employee outside the 7th Circuit's territory — Illinois, Indiana and Wisconsin — nothing has changed, she said. Keep doing what you're doing, for now. It's possible that the rest of the country's appeals courts will follow suit (as sometimes happens with the federal courts of appeal) but it's not a guarantee and, at the very least, it would take quite some time. "It could be years," Rhodes said.
"Make sure you’re talking with your attorney before you terminate someone."
CEO of the Disability Management Employer Coalition
And, if you're dealing with a situation that would fall under the 7th Circuit's jurisdiction, it's still pretty risky to start firing workers with disabilities who need time off, even if there's no other accommodation that would allow them to perform the essential functions of their job. Severson is a refreshing take on the law, Rhodes said, but don't get too overzealous thinking this is a game-changer.
"Make sure you’re talking with your attorney before you terminate someone," she said, noting that state and local laws may have different requirements, and company policies sometimes promise extra leave. Moreover, the 7th Circuit's view isn't widely accepted and the EEOC hasn't changed its stance.
In addition, this ruling may not be the final word in this case. The employee in Severson could ask the full 7th Circuit to rehear the case. (His attorney hasn't responded to a request for comment on whether such a request is in the works.) It also could end up before the U.S. Supreme Court. Rhodes said that would be a good thing for employers. "It would be welcome if we could get it up to ... the Supreme Court level," she said.
It's worth noting that not only does the High Court have a conservative majority right now, but its latest addition has previously said that a six-month leave of absence would rarely be a reasonable accommodation under the ADA.
But for now, employers should proceed with extreme caution. Severson could very well be the beginning of a sea change, but, as Rhodes says, "no dancing on the tabletop just yet."