The oxymoronic anomaly underlying the EEOC’s position concerning inflexible leave policies has troubled me for years. I first wrote about it in 2010, here. The recent Seventh Circuit Severson decision rejecting that inflexible leave theory destroys that oxymoronic anomaly and restores integrity to the definition of the word “can.” Let me explain.
Under the ADA, a qualified individual with a disability is one “who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.” (emphasis added) The EEOC’s view is that an inflexible leave policy violates the ADA because it does not allow consideration of additional leave as a reasonable accommodation.
But how does an individual who cannot even come to work satisfy the requirement that he/she can perform the essential functions of the position if granted an accommodation of more leave? How is one who “cannot” also one who “can”?
A few courts have recognized this anomaly. “When a period of leave from a job may appropriately be considered an accommodation that enables an employee to perform that job presents a troublesome problem, partly because of the oxymoronic anomaly it harbors…,” observed one judge. “Not working is not a means to perform the job’s essential functions,” observed another. The Tenth Circuit three years ago said that reasonable accommodations “are all about enabling employees to work, not to not work.”
The Seventh Circuit in Severson minced no words in rejecting the inflexible leave theory and abolishing that oxymoronic anomaly. “Simply put, an extended leave of absence does not give a disabled individual the means to work; it excuses his not working,” the court said. In other words, someone who “cannot” is not someone who “can,” at least not in the Seventh Circuit.