Cheers to the Seventh Circuit!

There may not be an issue that strikes more fear in the land of HR than how to deal with an employee who cannot return to work after FMLA leave expires. Is some additional leave beyond 12 weeks required? The answer is almost always ‘yes.’

But how much leave are we obligated to provide?

For ages, I’ve carefully counseled my clients on this issue, recognizing that the courts (and EEOC) have declined to offer any meaningful guidance on how much leave beyond FMLA employers are required to provide. Is it two months? Four? How ’bout six?

There has been no plausible answer. Until now.

In the matter of weeks, one rather influential federal appellate court has issued not one, but two decisions that set a far clearer path for employers to follow when deciding whether and how much additional leave they need to provide as a reasonable accommodation under the ADA. Let me quickly explain these cases and offer practical steps you should consider when analyzing an employee’s request for leave.

First Came the Severson case

Unless you’ve been securely wedged under a Human Resources rock over the past several weeks, you’ve been bombarded with alerts about the Severson case.

The facts of this case are fairly straightforward. Ray was employed at Heartland Woodcraft, and he suffered from a chronic back condition, which occasionally flared up and limited his ability to walk, bend, lift, sit stand, move and work. One such flare up caused Sugar Ray to take a continuous leave from work.  He asked for and was granted 12 weeks of FMLA leave.

Two weeks before his FMLA leave expired, Ray informed Heartland that his condition had not improved and that he would need surgery.  Heartland notified Ray the day before his surgery that his employment with Heartland would end when his FMLA leave expired the following day. However, it encouraged him to reapply for employment when he was able to return. As the story goes, he was ready to return several months later, but instead of reapplying, Ray filed an ADA lawsuit claiming, among other things, that his employer failed to provide a reasonable accommodation by granting him an extended leave of absence.

The ADA is Not a Leave of Absence Statute

In analyzing Ray’s ADA claim, the Seventh Circuit Court of Appeals acknowledged that a “brief” period of leave to deal with a medical condition could be an accommodation in some situations. But, the court also made clear that long-term leaves of absence fit securely within the “domain” of the FMLA, not the ADA. And in doing so, it set out a fairly bright-line rule:

Intermittent time off or a short leave of absence—say, a couple of days or even a couple of weeks—may, in appropriate circumstances, be analogous to a part-time or modified work schedule. . . But a medical leave spanning multiple months does not permit the employee to perform the essential functions of his job. To the contrary, the inability to work for a multi-month period removes a person from the class protected by the ADA.

Wow.  There is the new rule. A leave of couple of days or weeks may very well be required under the ADA. But a couple months?  No soup for you!  Severson v. Heartland Woodcraft (pdf)

As I shared with Law360 and Bloomberg BNA, it’s as if employers have been given a piece of the Holy Grail! For ages, we’ve searched for a more defined limit on how much leave an employer is obligated to provide under the ADA as a reasonable accommodation. This influential circuit court, at least, has defined this boundary for us.

Then Came the Golden case

Notably, weeks after the Severson case above was decided, the same appellate court doubled down on its position that the ADA was not a leave of absence statute and that leave beyond a couple of weeks simply is not required under the ADA.

Marytza’s case also is simple fact pattern.  She suffered from breast cancer, requiring surgery and an extended leave. As her 12 weeks of FMLA leave was about to expire, she sought an unspecified period of leave, which could have lasted as much as six months.  Her employer, the Indianapolis Housing Agency, declined to grant more than four additional weeks of leave. When Marytza could not return from work after 16 weeks off (12 weeks of FMLA leave and 4 additional weeks), her employer terminated her employment.

Again, the court went right back to its Severson decision issued weeks earlier, finding that

A multimonth leave of absence is beyond the scope of a reasonable accommodation under the ADA . . .[and that such a request] removes an employee from the protected class under the ADA.  Golden v. IHA (pdf)

Insights for Employers

These two cases are, in many respects, a game changer.  But what are the practical takeaways?

1. Where Can I Get Aggressive?  For my clients in Illinois, Wisconsin and Indiana (states covered by the 7th Circuit Court of Appeals), I clearly am being more aggressive in the manner in which I handle ADA leave requests. This court’s guidance is golden [no pun intended]: A few days or weeks of leave is likely required under the ADA. But one that is open-ended and spans multiple months simply is not.

2. For clients in other states, I’m using these cases as strong authority, but I’m not slamming the gas pedal.  Let’s remember: Engaging the Employee in the ADA’s Interactive Process is Essential.  Communicate during FMLA leave…after FMLA leave ends…and at all times before and in between!

When a client calls me for guidance on whether they can deny leave or terminate an employee after he or she has asked for the second or third extension of leave (after FMLA has expired), I ask the client for feedback on all the communications they have had with the employee regarding issues such as: a) the employee’s ability to perform his/her job; b) whether the employee likely will be able to return to work (and when); c) whether the requested leave will allow the employee to return to work immediately after the leave ends or very soon thereafter; d) whether there are other accommodations to help the employee return to work in a timely manner; and e) whether the employer has received any feedback from the employee’s physician about the above issues.  The EEOC’s decision to initiate litigation against an employer often hinges on whether the employer is to blame for the breakdown in the interactive process.  To minimize your exposure to liability, keep communicating with your employees!  The interactive process is essential.

3. Approach the Undue Hardship Analysis Carefully.  In an earlier post, I highlighted a presentation I gave some time back with EEOC Commissioner Chai Feldblum that analyzes the approach employers should take when determining whether a leave request poses an undue hardship.  In that post, I offer a number of criteria you should consider when making this determination.  I encourage you to use this analysis when determining whether a leave of absence is negatively impacting your operations.

4. A Quick Word of Caution about Intermittent Leave.  Notably, in both the Severson and Golden cases, the employee’s return to work date was unclear, which often is the case.  The court in Severson left open the possibility that a shorter leave period — indeed, intermittent leave — might actually be more palatable as a reasonable accommodation under the ADA.  All the more reason to tread carefully and conduct an individualized assessment of each leave request to determine whether a leave of absence is reasonable and effective in helping the employee return to work.

Credit: PDF of article reproduced with permission from Daily Labor Report (October 19, 2017). Copyright 2017 by The Bureau of National Affairs, Inc. (800-372-1033) <http://www.bna.com>

Photo credit: Warner Bros.

bad-managerKeith was a manager for Costco. By all accounts, he wasn’t a very good employee.  The store disciplined Keith over customer complaints, dress code violations, and failing to perform his job duties.  Consequently, he was placed on a performance improvement plan. Shortly after receiving the PIP, Keith told a subordinate that he planned to take FMLA leave “to secure his managerial rate of pay and position in the event of demotion.” This employee then reported the conversation to the store’s managerial staff because the employee was concerned that Keith was going to “scam” the company. The store promptly demoted Keith to a cashier position as a result of the report.

Two days after the demotion, Keith requested and was provided FMLA leave. During his leave, he requested a transfer to a different store, but his current store refused because he remained on FMLA leave. After his doctor released him to work, he was transferred to a position at a different store.

Keith immediately filed an FMLA and ADA lawsuit, claiming that the Company interfered with his FMLA leave when it demoted him and refused to allow him return to work when he requested.  He also added an FMLA retaliation claim.

Insights for Employers

The problem with Keith’s lawsuit?  Let me count the ways:

1.  The Company demoted him before he took FMLA leave.  Additionally, he did not provide proper notice of the need for FMLA leave when he told his subordinate that he was seeking FMLA leave. Because Keith did not follow the Company’s very specific policy for requesting FMLA leave, his request was not protected under the FMLA.

2.  Even if notice to the subordinate was enough to trigger the FMLA, Keith’s conduct still was not protected because the Company honestly believed that Keith was trying to “scam” the store, as reported by the other employee.  The Court put it this way:

Keith failed to produce any evidence that [his manager], or any other Costco manager, did not rely on the information gained from [Keith’s subordinate] in deciding to demote him. Keith was on a 90-day PIP at the time of his comment to the subordinate.  Costco honestly believed Keith violated its Manager Standard of Ethics by contemplating a fraudulent medical leave, and Keith presented no evidence to dispute this fact.  [My emphasis]

Based on the information it received from the subordinate, Costco surely had the right to suspect that Keith might be abusing leave. Me thinks, however, that Costco dodged a bullet when it did not conduct an investigation into Keith’s alleged comment.  As I have referenced in a previous post, courts typically will support an employer’s “honest belief” defense only after they have conducted a complete and exhaustive investigation into the facts.  The court reviewing this case didn’t fault Costco for failing to conduct an investigation, but the risk is that a different court easily could have, which would have required the Company to head to trial on Keith’s FMLA claims when they otherwise never should have seen the light of day.

3.  What about Keith’s request to transfer to another store while he was out on FMLA leave?  The Court’s response to this issue is helpful in practice for employers: Simply put, employers “are under no obligation to restore an employee to his or her position if the employee is unable to perform the essential functions of the job.”  Here, Keith remained on FMLA leave, so he clearly could not perform the functions of the job — whether at his current store or at another store.  As a result, Costco was well advised to keep Keith on leave and deal with the transfer request when he was able to perform the essential functions of his demoted cashier position.

The Curtis v. Costco court decision can be found here (pdf).