Severson v. Heartland Woodcraft

As often happens with serious injuries, the recovery period is hard to predict. In Severson v. Heartland Woodcraft, Inc., 872 F.3d 476 (7th Cir. 2017), Raymond Severson took his full 12 weeks of leave under the Family Medical Leave Act. He was addressing his serious back pain. On the last day of his leave, he went through back surgery. He asked for an additional 2-3 months of leave. The company said no and fired him when he did not return to work. The employee then sued for a violation of the Americans with Disabilities Act. Mr. Severson said the company failed to accommodate his need for time off.  Three months later, the plaintiff was cleared to return to work.

The employer was granted summary judgment. On appeal, the Seventh Circuit affirmed. Without any explanation, the court decided that Mr. Severson’s request was for “extended” leave. The court did not explain how it came to decide that 2-3 months was extended leave, as opposed to 6-7 months, or 9-10 months.

The court rightly noted that the ADA does not allow for extended leave. But, it did not explain why 3 months would constitute extended leave. The court found that leave involving “multiple” months would be too long. That period of time allows a person not to work, not help him work, said the court.

The Equal Employment Opportunity Commission filed an amicus brief. It argued that effective accommodation means reasonable accommodation. The Seventh Circuit disagreed, saying that the Supreme Court said in U.S. Airways v. Barnett, 535 US 391, 122 S.Ct. 1516, 152 L.Ed.2d 589 (2002), that reasonable accommodation does not require that accommodations be effective. In a confusing sentence, the court concluded that “effectiveness is a necessary but not sufficient condition for a reasonable accommodation under the ADA.” But, to be fair to the Seventh Circuit, the decision in Barnett is confusing. Justice Breyer seems to conflate accommodation with undue hardship. The Justice strains to explain that accommodation needs to be effective, which would render the use of the word “reasonable” superfluous.

In the end, the Seventh Circuit concluded that if the court read the ADA as the EEOC argued, then the ADA would become a medical leave statute. If employees are entitled to extended leave under the ADA, then the ADA becomes a medical leave statute, or an “open-ended” version of the FMLA. At this point, the court has abandoned legal scholarship and now relies on cliches. The court presents no evidence that Congress intended the ADA not to include medical leave. And, indeed, the language of the ADA indicates otherwise. See the decision here.

If a person needs an extended leave for treatment for a bad back, would the ADA require an employer to allow him an extra few months? The Seventh Circuit in Severson v. Heartland Woodcraft, Inc., No. 15-3754 (7th Cir. 9/20/2017), said no. Ray Severson, left work for his full 12 weeks of unpaid leave under the FMLA. He then told his employer he would have to undergo surgery on his back. He needed disc decompression surgery. He would need at least two months off from work for recovery. HR told him his last day would be the last day of FMLA. HR added that he could reapply for his position when his treatment ended. In effect, he was fired. Later, when Mr. Severson recovered and was cleared to return to work, he sued is employer, saying the employer had failed to accommodate him.

The plaintiff argued on appeal that the company could have offered him long-term leave, a light duty job, or reassignment to a vacant job. The Seventh Circuit, however, simply ruled that a long-term leave is not viable/ Not working, said the court, is not a means to fulfill the essential functions of the job. If the employee cannot perform the essential functions of the job, then he is not qualified for the job. The court noted that EEOC guidance expressly states long-term leave is a possible alternative under the ADA, if the leave is of definite duration, is requested in advance, and is likely to enable the worker to return to work. But, the court insists if the EEOC’s position as correct, then the ADA would become a medical leave act. It would supplant the FMLA.

The decision contravenes caselaw in other circuits which have found long-term leave to be a viable option. See, e.g., Walsh v. United Parcel Serv., 201 F.3d 718, 727 (6th Cir. 2000) (reasserting requirement for individualized analysis but not requiring accommodation because even after one year’s paid leave, followed by five months unpaid leave, plaintiff’s homeopathic physician only offered the vague possibility of returning in one to three more years, and suggested no other work he could do); Cleveland v Fed. Express Corp, No 02-3172, 2003 US App LEXIS 24786, at *13 (6th Cir Nov 28, 2003) (unpublished) (finding leave from August 20, 1997 to February 1998, extended to March of 1998 (6 months total) not unreasonable).

The court did not ask whether long-term leave would have presented an undue hardship for the employer. It found, instead, as a blanket rule, that leave longer than the FMLA leave of three months is per se too long. A blanket rule does not satisfy the individual assessment requirement of the ADA.