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ADA Does Not Require Extended Leave – Says 7th Circuit

on Thursday, 21 December 2017 in Labor & Employment Law Update: Sarah M. Huyck, Editor

In an aggressive effort by the EEOC, multiple employers have settled cases where the EEOC has alleged that the ADA requires extended, long term leave as a form of accommodation under the ADA. Some of these class action claims have settled in the tens of millions of dollars. As the EEOC’s theory goes, an employer must modify its policies by providing leave beyond its policies if it would allow the employee the opportunity to one day perform the essential job functions as a form of reasonable accommodation.

Under the typical scenario, an employee with a medical issue uses up all available medical leave, often FMLA. At the end of the leave, the employee is not able to return to the position because the employee is unable to perform the position with or without reasonable accommodations. While courts early in the passage of the ADA required that the employee actually perform the essential job functions in order for the reasonable accommodation to be considered, the more recent argument by the EEOC is that it is also a reasonable accommodation to have the employee not work until that time when the employee is able to work.

Employers now have a case which returns to the core of the statute — reasonable accommodations are those modifications which allow an employee to perform the essential functions of the job. According to the 7th Circuit “The ADA is an antidiscrimination statute, not a medical-leave entitlement. The Act forbids discrimination against a “qualified individual on the basis of disability.” Id. § 12112(a). A “qualified individual” with a disability is a person who, “with or without reasonable accommodation, can perform the essential functions of the employment position.” Id. § 12111(8). So defined, the term “reasonable accommodation” is expressly limited to those measures that will enable the employee to work. An employee who needs long-term medical leave cannot work and thus is not a “qualified individual” under the ADA.

The 7th Circuit decision opens the door for the split of circuit courts to be decided by the Supreme Court. Ultimately, employers need more certainty for applying their leave policies. We will all continue to watch this line of cases and possible resolution by the Supreme Court. To read the case, go here.

Scott S. Moore

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