Never Ending Medical Leaves Of Absence: Help May Be On The Way

By Mark F. Kluger and William H. Healey

In, Do We Really Have to Hold Their Job Open? (December 2016), we whined about how hard our jobs are when employers want to terminate employees who exceed the 12-weeks of leave for their own serious health condition under the Family and Medical Leave Act (“FMLA”). You may recall that we lamented how the EEOC aggressively enforces its position that the Americans with Disabilities Act (“ADA”) may require extended job protected leave as a reasonable accommodation but without any guidance on how long an employer might have to accommodate that leave. Well thanks to a federal appeals court, soon we may be whining no more (on this topic anyway).

Last month, a federal appeals court finally said the words we’ve been longing to hear: The ADA is an antidiscrimination statute, not a medical-leave entitlement. That’s what we’ve been saying, but the EEOC has not been listening. In the case, the employee took a 12-week FMLA leave because of chronic back problems. An essential function of his job included regularly lifting 50+ pounds. After 10 weeks of leave, the employee notified the company that he needed to have back surgery which was scheduled coincidently for the last day of his FMLA leave. On the day before the surgery, the employer notified the employee that he was terminated effective the next day. While you might consider that timing harsh, the employer actually did the guy a favor, because there is nothing that will distract you from the fear of surgery more than knowing that when you wake up, you’ll be unemployed. The employer did advise the employee to reapply for his job when he was medically cleared to return. Several months later, he was cleared but rather than reapply, he filed a lawsuit under the ADA claiming that the employer deprived him of a reasonable accommodation by failing to extend his leave.

In siding with the employer, the appellate court kept it simple. A “reasonable accommodation” is supposed to enable an employee to work, but [a]n employee who needs long-term medical leave cannot work and thus is not a “qualified individual” under the ADA. The court added that an extended leave of a few days or even weeks might be reasonable, but a multi-month leave of absence is beyond the scope of a reasonable accommodation….Long-term medical leave is the domain of the FMLA. And finally, as if we were not ecstatic enough, the court went right at the EEOC, writing: 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. That’s an untenable interpretation of the term “reasonable accommodation.” Hallelujah!

You may wonder why we did not tell you this good news before now. There are several reasons other than Harvey Weinstein. First, it is only one decision by one circuit court of appeals. Secondly, the decisions of that circuit only apply in Illinois, Wisconsin and Indiana; not that there is anything wrong with those states, but we  don’t live there. And finally, the decision does not change the EEOC’s ability to impose its way of life on all the other jurisdictions. But before you logout, here’s why we decided to tell you now. Last week that same appellate court made another nearly identical decision on the same issue. In that case, an Indiana housing authority police officer took 12-weeks of FMLA leave due to a serious illness. The employer extended her leave another 4 weeks when she could not return. Her doctor then wrote a note saying that she could return after 6 months (an extended leave time that the EEOC has previously said may be reasonable under the ADA). The same court again upheld the employer’s rejection of that request for accommodation, finding that an employee who cannot return to work for 6 months is not a “qualified individual” under the ADA.

We are not ready to abandon our advice to engage in the interactive process under the ADA whenever an employee seeks extended leave. That is still the safest recommended approach. Although this issue may not be over until the Supreme Court says it is, at least right now, it looks like help for employers may be on the way. Leave it to those rugged Mid-Westerners to put the reasonable back into the meaning of reasonable accommodation.