The ADA is Not a Medical leave Entitlement Redux

Not a month since its Severson decision holding that the ADA does not create a medical leave entitlement and thwarting the EEOC’s assault on “inflexible leave” policies, the Seventh Circuit reiterated that holding in yet another case.

In Golden v. Indianapolis Housing Agency, the court affirmed summary judgment to an employer who had granted the plaintiff her 12 weeks of medical leave under the FMLA and an additional four weeks of leave under the employer’s policy, but denied her request for six additional months of unpaid medical leave.

The court said that the ADA’s “‘qualified individual’ requirement is fatal to Golden’s case. We recently reaffirmed that “[a]n employee who needs long-term medical leave cannot work and thus is not a ‘qualified individual’ under the ADA,” citing Severson (emphasis in original).

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Concurring, Circuit Judge Rovner questioned the circuit precedent which led to the result in Golden. Noting that these precedents had left open the possibility that the ADA may require an employer to provide short term leave, he asked: “But what sense does it make that the ADA could require an employer to accommodate an employee with lupus who requires one week leaves, several times a year, every year, but can never require an employer to accommodate an employee who needs a one-time leave of four or five months to recuperate from, for example, a kidney replacement?”

As I have said numerous times, the Supreme Court of the United States, eventually, will resolve the issue of whether, and to what extent, the ADA provides a medical leave entitlement. Perhaps the plaintiff in Severson or Golden will seek Supreme Court review!

The Demise of the Oxymoronic Anomaly of Leave as a Reasonable Accommodation

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”?

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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.

My post last week concerning the Severson decision is here.