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Must employers provide ADA leave after FMLA runs out?

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The Family and Medical Leave Act mandates that employers provide up to 12 weeks of unpaid leave for a serious medical condition. But what happens when an employee requests additional weeks or months off for a disabling condition?

The 7th U.S. Circuit Court of Appeals has rejected one man’s request for a three-month extension beyond his FMLA leave. After his employer fired him, the man claimed the company had violated its obligations under the Americans with Disabilities Act. Now he is asking the Supreme Court to step in to interpret the ADA favorably.

Is long-term disability leave a reasonable accommodation?

Employers (and courts) have long wrestled with extended leave under the Americans with Disabilities Act. The ADA requires employers to make “reasonable accommodation” of a person’s disability. It is illegal to fire someone on the basis of their disability. But how far do employers have to go to make allowances for a person who cannot work at all because of their physical or mental impairment?

Raymond Severson took a four-month leave from his blue-collar job to deal with disabling back pain. At the end of his leave he had back surgery, which required another two or three months of recuperation. Having exhausted his 12 weeks under the Family and Medical Leave Act, he asked his employer, Heartland Woodcraft Inc., for a continuation of leave. The company declined and terminated his employment.

Courts are split on the issue

Severson sued for discrimination, arguing that his termination was a failure to provide reasonable accommodation under ADA. The district court sided with the employer and the Seventh Circuit affirmed that decision. In its opinion, the appellate court interpreted the ADA as an anti-discrimination statute, not a medical leave entitlement. It flatly asserted that “a multi-month leave of absence is beyond the scope of reasonable accommodation.” The decision was consistent with a similar rulingby the Seventh Circuit earlier in 2017 which upheld the termination of a state employee who was unable to resume work after a four-week extension beyond FMLA.

But the Seventh Circuit decisions are at odds with the interpretation by the Equal Employment Opportunity Commission and other circuit courts. The EEOC and appellate courts have agreed that the ADA does not require indefinite, open-ended leave. Yet they have ruled that employers cannot put an arbitrary hard cap on medical leave. The EEOC’s stance led to a $2 million settlement on behalf of a UPS worker who was denied leave beyond UPS’s 12-month cap.

Can employers issue pink slips after FMLA runs out? Is a multi-month extension beyond FMLA a reasonable request? What if the employee needs a second extension or future accommodations? The Supreme Court often wades in when the appellate courts are divided and the case has broad implications. But the high court has a full docket and may not take up the case this year. For the time being, employees and employers may be at the mercy of the circuit where they are located.

This blog was originally published by Passman & Kaplan, P.C. on February 2, 2018. Reprinted with permission. 

About the Author: Founded in 1990 by Edward H. Passman and Joseph V. Kaplan, Passman & Kaplan, P.C., Attorneys at Law, is focused on protecting the rights of federal employees and promoting workplace fairness.  The attorneys of Passman & Kaplan (Edward H. Passman, Joseph V. Kaplan, Adria S. Zeldin, Andrew J. Perlmutter, Johnathan P. Lloyd and Erik D. Snyder) represent federal employees before the Equal Employment Opportunity Commission (EEOC), the Merit Systems Protection Board (MSPB), the Office of Special Counsel (OSC), the Office of Personnel Management (OPM) and other federal administrative agencies, and also represent employees in U.S. District and Appeals Courts.

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