Many questions spring up for employers when an employee exhausts their FMLA leave but still can’t return to work. Are you required to give them more leave under the ADA? If so, how much additional leave is too much? Can you fire them for needing too much time off?
Employers have been faced with these questions a lot recently, and some answers are starting to emerge. This fall, it was the Seventh Circuit that decided (twice) that “a multi-month leave of absence is beyond the scope of a reasonable accommodation under the ADA.” More recently, the Eleventh Circuit came to the same decision.
But … while it may seem like a pro-employer pattern is emerging, additional ADA leave cases are still finding their way into the courtroom. Currently, the EEOC is suing the Blood Bank of Hawaii for firing three employees who were unable to return to work as soon as their FMLA leave ended instead of granting them more leave under the ADA. Is this case different than the others? Should a different outcome be expected?
Seventh Circuit decisions
The Seventh Circuit (which covers IN, IL, and WI) ruled in favor of the employers in two separate lawsuits, which had a lot of similarities. In both cases, employees had medical conditions, and after exhausting their FMLA leave, requested more leave as an accommodation under the ADA. The employers denied these requests, stating they were unreasonable, and the court agreed.
Severson v. Heartland Woodcraft came first. Raymond Severson had a back condition that required surgery. After his FMLA leave was exhausted, Severson requested additional time off. Heartland Woodcraft terminated him, but encouraged Severson to reapply once he was better.
Severson took the company to court, claiming his employer failed to give him the accommodation he needed — more leave. Heartland Woodcraft argued that Severson had already been granted six months of leave and it just wasn’t reasonable to give him any more time off. The court ruled that Severson would not have been able to work if he had been granted this additional leave, which is an essential part of an ADA accommodation request. “Medical leave spanning multiple months does not permit the employee to perform the essential functions of his job,” the court said. It also added that long-term medical leave is what the FMLA is for, not the ADA.
The second Seventh Circuit ruling came in Golden v. Indianapolis Housing Agency. Marytza Golden was a police officer who was diagnosed with breast cancer. She exhausted her FMLA leave, and requested additional leave. Exactly how much leave she needed was unclear, but there was the potential that Golden would not return to work for six months. Her employer rejected the request and fired her. Golden sued, claiming the company violated the ADA.
The court once again ruled that several months of additional leave was unreasonable — especially since Golden had no clear return date. The court said in order to be protected under the ADA, Golden needed to be able to work with or without an accommodation. Since she was not able to work either way, Golden wasn’t ADA-protected and the employer was within its rights to not grant her additional leave, it ruled.
In both of these rulings, the Seventh Circuit made it clear that these long-term leave requests — above and beyond FMLA leave — were not reasonable accommodations. Also, the employees would not be able to do their jobs with these accommodations. “An extended leave of absence does not give a disabled individual the means to work; it excuses their not working,” the court said.
Eleventh circuit ruling
After Billups v. Emerald Coast Utilities Authority, the Seventh Circuit got some backup in deciding additional long-term leave wasn’t a reasonable accommodation.
Roderick Billups hurt his shoulder and took six months of leave, which he was entitled to because he was injured on the job. After exhausting his medical leave, he was still unable to return to work. Billups needed surgery, and as an accommodation under the ADA, requested six additional weeks off to recover. After the recovery time he said he’d be able to work without any limitations, but he was fired. In court, Billups argued that he had a projected return date, therefore his leave request was not open-ended. But the court said that Emerald Coast had already given him six months off, and Billups still was not able to perform his duties.
Not only that, but Billups could not think of any accommodations that would allow him to return to work before the six weeks of recovery time was up. The court said that the ADA prohibits employers from discriminating against “qualified individuals on the basis of disability,” but Billups was no longer qualified because he couldn’t perform the essential functions of his job.
The Eleventh Circuit (which covers AL, GA, and FL) ruled alongside the Seventh Circuit, stating long-term leave beyond FMLA leave isn’t a reasonable ADA accommodation.
That should pretty much settle things and give employers a clear picture of how to deal with the interaction between the ADA and FMLA, right?
Not so fast. The EEOC has other ideas.
Still pushing the envelope
With these three rulings paving the way, the EEOC’s case against the Blood Bank of Hawaii might seem repetitive. But it’s clear that the EEOC believes — at least in some cases — that employees are entitled to additional leave once their FMLA leave is exhausted. One could assume this case will play out like its predecessors, but there are a few reasons it could go the other way.
The one key difference in this case is that the blood bank had a very strict maximum leave policy. Once employees’ 12 weeks of FMLA leave were up, they were expected to return to work, free of any limitations, the EEOC says. It claims three employees were not medically cleared to go back to work after their FMLA leave was over, and they were fired. While two of the employees were requesting additional leave as an accommodation, one said she could return to work with an accommodation. The blood bank still fired her, according to the agency’s claim.
The fact that these employees were automatically fired is what’s fueling the EEOC’s case. “Employers have a duty to engage in the interactive process and provide reasonable accommodations to employees with disabilities,” EEOC regional attorney Anna Park said. “Employees should never be terminated simply because they need additional leave for their disabilities.”
The EEOC condemns the blood bank’s rigid leave policy, stating that each employee’s disability is unique, which is why it’s so important that employers work with that individual.
If you have an additional ADA leave case in the Seventh or Eleventh Circuit, the odds of being able to deny additional long-term leave under the ADA appear to be in your favor. If you are located outside of these two circuits, things are still pretty murky, but you could still use these rulings as a blueprint for how to justify denying added leave.
When it comes down to it, the most important thing you can do is engage with the employee making an accommodation request. Just having discussions about possible accommodations — up to and including additional leave — with the employee can go a long way in court, as seen in the Seventh and Eleventh Circuit rulings. Not having the discussion at all, like in the blood bank’s case, can land you in hot water.
Where does all of this put intermittent leave? When it comes to handling requests for that, the jury’s still out.
The Seventh Circuit did say that intermittent time off (i.e., a few days here and there) may be reasonable — as they’re often equivalent to a modified work schedule and, thus, may be required under the ADA.