Two weeks ago, I posted that the EEOC had sued a blood bank for giving employees only the leave they were entitled to under the FMLA, and not considering additional leave as an accommodation under the ADA. I noted that “the EEOC’s view is that the maximum leave required by the FMLA is merely the starting point for determining whether an employer has fulfilled its obligation to provide leave under the ADA.”
Last week, in words that seem to leave no room for interpretation, the Seventh Circuit rejected the EEOC’s view. The employer had provided the plaintiff with all of the leave he was entitled to under the FMLA and denied his request for an additional two to three months to recover from back surgery. The plaintiff claimed he was entitled to more leave as a reasonable accommodation under the ADA. The EEOC filed an amicus brief in support of the plaintiff.
The Court rejected the plaintiff’s and EEOC’s arguments and granted summary judgment to the employer. According to the Court:
“The ADA is an antidiscrimination statute, not a medical-leave entitlement….. Long-term medical leave is the domain of the FMLA.”
“An employees who needs long-term medical leave cannot work and thus is not a ‘qualified individual’ under the ADA.” (italics in original)
“[A] long-term leave of absence cannot be a reasonable accommodation…..'[N}ot working is not a means to perform the job’s essential functions’”
While the FMLA provides leave to employees unable to perform their job, “the ADA applies only to those who can do the job.”
The EEOC had also argued that it would not be an undue hardship for the employer to grant additional leave. The Court rejected that argument as well, noting that “undue hardship” is a “second tier inquiry” which is only reached after a reasonable accommodation has been identified.
The Seventh is the second circuit to reject the EEOC’s position that an inflexible leave policy violates the ADA. In a 2014 opinion authored by then-10th Circuit Judge, now Associate Justice of the Supreme Court Neil Gorsuch, the Tenth Circuit rejected the argument that the employer’s six-month maximum leave policy violated the ADA. Hwang v. Kansas State University, (10th Cir. 2014). Last week’s Seventh Circuit case is Severson v. Heartland Woodcraft, Inc.
As I noted in my post a few weeks ago, I suspect the inflexible leave issue will make it to the Supreme Court’s docket eventually.