Don’t forget leave as an ADA accommodation. (Yeah, that’s right. Leave!)

Over the Summer, I blogged here about the Seventh Circuit’s decision in Severson v. Heartland Woodcraft, Inc. (opinion here).

In Severson, the Court concluded that “a multimonth leave of absence is beyond the scope of a reasonable accommodation under the ADA….Simply put, an extended leave of absence does not give a disabled individual the means to work; it excuses his not working.” (my emphasis)

It’s an excellent opinion for employers, especially those that do business in Indiana, Illinois, and Wisconsin.

But, I want to use today’s post to refocus and remind you that leave can be a reasonable accommodation under the Americans with Disabilities Act.

One employer may be learning this lesson the hard way.

Yesterday, the U.S. Equal Employment Opportunity Commission announced here the filing of an ADA lawsuit against a TN-based employer. In the lawsuit, the EEOC alleges that The HealthCare Center at West Meade Place refused to allow to permit an employee with a disability to take some time off from work as a reasonable accommodation. Instead, it fired her.

Here’s more from the EEOC press release:

West Meade hired the employee as a laundry technician in February 2015. When the employee requested leave as a reasonable accommodation for her anxiety disorder in November 2015, management told her she could not take leave, as the Family and Medical Leave Act did not apply to her.

West Meade then required the employee to obtain and return to management a note from her doctor, clearing her to return to work without any restrictions, less than 36 hours after the employee requested a reasonable accommodation for her disability. When the employee could not quickly obtain a doctor’s note, West Meade discharged her, the EEOC said.

In Severson, the EEOC argued that “employees are entitled to extended time off as a reasonable accommodation.” According to the court, the EEOC position was untenable because, with extended time off, “the ADA is transformed into a medical-leave statute — in effect, an open-ended extension of the FMLA. That’s an untenable interpretation of the term ‘reasonable accommodation.'”

But, a little time off is still ok. There’s nothing in Severson that says otherwise. Even the Seventh Circuit acknowledged that “[i]ntermittent 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, two of the examples listed in the ADA regulations.”

We often contemplate of the interplay between the FMLA, a leave statute, and the ADA, an accommodation statute. God knows I’ve taught that seminar plenty. But leave as an accommodation under the ADA can exist without the FMLA breathing any life into it. In light of Severson, leave of just a few days or weeks where the FMLA may have a stronger chance of withstanding judicial scrutiny. (When paired with FMLA, I’d argue that at least some of the FMLA leave itself is an ADA accommodation.)

Here are some other takeaways from the new EEOC lawsuit.

1. Leave may be a reasonable accommodation for an anxiety disorder. However, if the anxiety disorder is work-related, then the employee with an anxiety disorder may not be a “qualified individual” under the ADA. A “qualified individual” is someone who can perform the essential functions of the job with or without accommodation.
2. Just because an employee asks for leave doesn’t mean you have to provide it if there is another reasonable accommodation available that will enable the employee to perform the essential functions of the job. You figure that out by having a good-faith interactive dialogue with the employee.
3. But don’t flippantly — is that a word, “flippantly”? — dismiss a disabled employee’s request for leave, especially where the employee is not FMLA eligible (duh!) or the employee has run out of banked time off. Just send your eyes up the page a bit for a little more on that.