Paul Sweeney

I was recently emailing with a colleague about diversity topics and the colleague used the acronym “DEIA.” I humbly admitted that I did not know what the “A” stood for and asked. I learned that it stands for “Access” or “Accessibility,” such as access for individuals with disabilities. In today’s more inclusive workplace, prudent employers are dusting off their old thinking on the ADA, and, more specifically, leave as a reasonable accommodation, which fits in well with DEIA initiatives. 

You may ask, “How do the ADA and DEIA initiatives relate, or interrelate?” Think about, for example, the interactive process and leave as a reasonable accommodation. A question most employers face at one time or another is whether an employee’s request for extended leave (in the absence of FMLA coverage or beyond what the FMLA requires) qualifies as a reasonable accommodation under the ADA. The answer is not always a simple “yes” or “no.”

In 2017, the United States Court of Appeals for the Seventh Circuit (which covers Indiana, Illinois, and Wisconsin), declared, “The ADA is an antidiscrimination statute, not a medical-leave entitlement.” Severson v. Heartland Woodcraft, Inc., 872 F.3d 476, 479 (7th Cir. 2017). It may be better to refer to it as a disability accessibility statute, consistent with the acronym I just learned, DEIA. In the five years since the Severson decision, it remains good law in the Seventh Circuit that “[a] multimonth leave of absence is beyond the scope of a reasonable accommodation under the ADA.” Despite this fact, the Equal Employment Opportunity Commission’s (EEOC) ADA guidance [1] still asserts that an unpaid leave is a form of reasonable accommodation an employer should consider, and at least the First (which covers Maine, Massachusetts, New Hampshire, Puerto Rico, and Rhode Island) and Fourth (which covers Maryland, North Carolina, South Carolina, Virginia, and West Virginia) Circuits of the federal appellate courts and the state courts in New Jersey agree with the EEOC and have rejected the holding in Severson

Truth be told, the holding in Severson does not completely negate the EEOC’s position, as the Severson case dealt with an extended leave post-exhaustion of FMLA leave, not an extended leave alone. The court did not address a request for “one more day, one more week or even one more month?” We do not know how the court would have ruled under those sets of facts, but we can venture to guess that the outcome may have been different. Hence the need to understand that a hard and fast rule, without some flexibility, invites problems. 

Although not all employees or plaintiff’s attorneys will agree with me, it is safe to say that most, if not all, employers want to keep their disabled employees, either because they too know the value of hard work, or because according to a recent Glassdoor study that found the average cost of hiring an employee is $4,000. Disability accessibility, as a part of DEIA initiatives, therefore, advances both the ADA and the economic interests of employers. 

In no particular order, here are few key tips when it comes to handling request for leave as a reasonable accommodation.

  • View the ADA and your DEIA initiatives as being aligned, not at odds. Although every disability cannot be accommodated in every case, your DEIA efforts should include the interactive process contemplated by the ADA.
  • Do not presume that a hard and fast rule will always comply with the ADA. Use language that leaves open the door for the interactive process. 
  • Be cognizant that the Severson holding does not place limitations on extended leave requests as an accommodation under the ADA in jurisdictions outside of the Seventh Circuit—or even in situations in the Seventh Circuit that address a more limited amount of leave. 
  • Be aware of state and local disability discrimination and accommodation laws, some of which may require employers to consider long-term leave requests. 
  • Analyze all accommodation requests (including those for extended leave) individually via the interactive process. NOTE: the EEOC opposes the Severson decision and will not likely back down from its position that a long-term medical leave should qualify as a reasonable accommodation, under certain circumstances. When the leave is of a definite, time-limited duration, is requested in advance, and will enable the employee to perform essential job functions upon return to work, the accommodation may be required under ADA if it is reasonable under the circumstances, barring undue hardship.
  • Do not assume that a multi-month leave is not a reasonable accommodation where the FMLA does not applye.g., for employers with less than 50 employees. In some circumstances, a more generous leave (similar to or exceeding the length of an FMLA leave) may still be a reasonable accommodation.  
  • Factually assess the reasonableness of the request and any undue hardship created before you deny leave as a reasonable accommodation, and document the analysis. For more information about undue hardship and leave, see the EEOC’s resource entitled Employer-Provided Leave and the Americans with Disabilities Act.

Please contact Paul C. Sweeney at (317) 236-5894 or paul.sweeney@icemiller.com, or another member of Ice Miller LLP’s Workplace Solutions Group if you have any questions regarding the ADA, ADAAA, FMLA, GINA, state leave laws and their interplay with leave laws, or to discuss any other questions you may have about how your company can ensure that you comply with these laws.

[1] The EEOC has long held the position that employers must consider providing leave as a reasonable accommodation if it does not create an undue hardship. See the agency’s 2002 enforcement guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act (ADA) and May 2016 resource document Employer-Provided Leave and the ADA. The objective of providing leave as an accommodation is to enable employees with disabilities to take job-protected time off to manage their medical impairments and ultimately return to work to perform essential job duties, which is consistent with DEIA initiatives. As noted in Severson, there is no pre-determined duration of leave time that is required to be granted under the ADA because the ADA is not a leave law.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader’s specific circumstances.

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