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Nov 2017
15
November 15, 2017

Does the ADA Require More Than the FMLA's 12 Weeks Medical Leave?

Your employee, Joan, has a serious health condition. She has cancer. You granted Joan 12 weeks of leave under the FMLA. But now the 12 weeks are exhausted and Joan cannot return to work. So Joan asks for more time off. Must you grant Joan more leave time as an accommodation under the Americans with Disabilities Act (ADA)? And if so, how much more time?
 
The Equal Employment Opportunity Commission (EEOC) certainly thinks you may have to grant Joan more time — and maybe a lot more time. The EEOC has been very aggressive in this position and has forced some large employers into big settlements on this issue. 

For example, United Parcel Service (UPS) agreed to pay $1.7 million to settle a nationwide lawsuit brought by the EEOC challenging UPS’s policy of terminating workers who can’t return from medical leave after 12 months.

But now the federal 7th Circuit Court of Appeals has thrown a monkey wrench into the EEOC’s position. In Severson v. Heartland Woodcraft, Inc., the court held that the ADA may require an employer to allow workers to take a few more days or weeks off, but a long-term medical leave over a number of months is not a required accommodation under the ADA. According to the court, the ADA is “an anti-discrimination statute, not a medical leave entitlement.” 

This is a major development. But it needs to be kept in context. 

First, the 7th Circuit only has jurisdiction over Illinois, Indiana and Wisconsin. And while the rationale of the court might be compelling to other courts, the decision is not conclusive outside those three states. 

Second, the EEOC isn’t accepting this decision on a nationwide basis. A spokesperson for the EEOC has already stated that the EEOC is “disappointed” in the decision. But the EEOC at some point will become controlled by Trump administration appointees. So it is possible that a reconstituted EEOC may adopt the reasoning of the 7th Circuit. 

Finally, employers should not forget that many states also have anti-discrimination laws, including some that prohibit discrimination based on disability. It is possible that states will amend their laws (or interpret existing state laws) to provide for leave beyond that provided by the FMLA. 

So what should an employer do?
 
  • Know that this is an area of the law in transition. 
  • Carefully evaluate an employee’s request for leave beyond that required by the FMLA. 
  • Consider the jurisdiction in which the employee works and whether granting additional leave beyond FMLA is prudent in light of the law within that jurisdiction. 
  • Consider your own policies. Do you already grant leave beyond FMLA to coincide with your short-term disability policy? 

If you have any questions about granting an employee a leave of absence, please contact any member of the Warner Norcross & Judd Labor & Employment Practice Group. 

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