All employers (at least, those with 50 or more employees) must deal with the issue of whether or not the ADA requires them to allow “disabled” employees to take additional time off of work after they have exhausted their FMLA leave as “reasonable accommodation.” The EEOC has even taken the position that an employer must allow unpaid leave until it can prove that it would be an “undue burden” to continue to do so.
On September 20, 2017 the Seventh Circuit Court of Appeal issued a ruling that is remarkable in its common sense. In Severson v. Heartland, the Seventh Circuit held that Heartland had not violated the ADA when it terminated Mr. Severson upon the expiration of his 12 weeks of FMLA leave rather than allowing him an additional two to three months of leave to recover from back surgery.
We affirm. The ADA is an anti-discrimination statute, not a medical-leave entitlement. The Act forbids discrimination against a “qualified individual on the basis of disability.” A “qualified individual” with a disability is a person who, “with or without reasonable accommodation, can perform the essential functions of the employment position.” So defined, the term “reasonable accommodation” is expressly limited to those measures that will enable the employee to work. An employee who needs long-term medical leave cannot work and thus is not a “qualified individual” under the ADA.
The Court noted that additional leave of a couple of days or even weeks may be reasonable, but that additional leave of multiple months does not permit the employee to perform his job; it allows him to avoid doing the job.
On October 17, 2017, the Seventh Circuit issued a similar opinion. In Golden v. Indianapolis Housing, the Seventh Circuit held that Indianapolis Housing did not violate the ADA when it refused to allow Golden up to an additional six months of leave upon the expiration of her FMLA leave. Golden had taken FMLA leave to be treated for breast cancer. At the expiration of her FMLA leave, her physician listed the duration of her condition as “ongoing” and her period of incapacity as “until release.” The Seventh Circuit held that Golden could not state an ADA claim because she was not a qualified individual with a disability.
The “qualified individual” requirement is fatal to Golden’s case. We recently reaffirmed that “[a]n employee who needs long‐term medical leave cannot work and thus is not a ‘qualified individual’ under the ADA.” We expressly declined to overrule Byrne and concluded that “A multi- month leave of absence is beyond the scope of a reasonable accommodation under the ADA.” Severson requires us to hold that a request for six months of medical leave in addition to the twelve weeks required by the FMLA removes an employee from the protected class under the ADA and the Rehabilitation Act. In short, because Golden is not a qualified individual, the district court correctly granted summary judgment to IHA.
Although the Fifth Circuit Court of Appeals as recently as April of this year has held that the ADA does not require an employer to allow an employee to “take an indefinite leave for purposes of accommodation, it has not yet limited the additional leave to a couple of days or weeks, as has the Seventh Circuit.