A Request for Leave of Two Months is “Too Much” to be Considered as a Reasonable Accommodation Under the ADA in Illinois and Wisconsin.

In Severson v. Heartland Woodcraft, the Seventh Circuit Court of Appeals provided clear guidance that a request for leave of two months or more is “too much” to be considered as a reasonable accommodation under the ADA under any circumstances.

Employers often deal with situations in which an employee is temporarily unable to work as a result of a health condition. Many employers may grant a leave under their existing leave policies providing for paid or unpaid sick leave, paid or unpaid time off, or short-term leave provided by the Family and Medical Leave Act. However, employers face difficult decisions when an employee is unable to return to work after exhausting leave available under their policies.

Typically, employees wishing to keep their position can request a “reasonable accommodation” under the Americans with Disabilities Act (the “ADA”). Although the ADA does not require employers to grant leaves of absence for “infinite” periods, many federal courts have interpreted the ADA that additional “job-protected” leave is, indeed, a reasonable accommodation required by the ADA if such leave will allow the disabled employee to return to work in the “near future.” However, the determination of what constitutes a near future and how much leave is considered reasonable requires a case-by-case analysis, necessitating prolonged and expensive litigation.  Potential liability to employers for violations of the ADA’s reasonable accommodation requirements could involve lost wages, back pay, front pay, emotional distress, and attorneys’ fees.

Employers could potentially avoid liability for failing to provide a reasonable accommodation if they could demonstrate that the required accommodation would impose an “undue hardship” on the employer. However, the existence of an undue hardship involves an expensive fact-finding litigation process that is generally decided by a jury and very difficult to satisfy. Therefore, many employers would agree to accommodate their employees’ unreasonable requests for extended leave simply to avoid the costs and risks associated with potentially protracted litigation.

However, the recent decision of the Seventh Circuit Court of Appeals in Severson v. Heartland Woodcraft, 872 F,3d 476 (7th Cir, 2017), cert, denied, 138 S. Ct, 1441 (2018) provides clear guidance that a request for leave of two months or more is “too long” to be considered a reasonable accommodation under the ADA. The Severson court has held that an individual requiring such leave is not, as a matter of law, a “qualified individual with disability” under the ADA.  Therefore, an employer has no duty to accommodate the employee’s request for such extended leave.

In the current political environment and the general conservative composition of the federal bench, the Stevenson decision is likely to stay. Moreover, the U.S. Supreme Court’s recent decision to deny the employee’s petition for certiorari, requesting a review of the Severson decision, will likely be viewed by the Illinois and Wisconsin federal and state courts as adding credibility and persuasiveness to the reasoning employed by the Seventh Circuit in its decision.