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The federal Court of Appeals in the Seventh Circuit, covering Wisconsin, Illinois and Indiana, recently issued an employer-friendly decision, addressing one of the accommodation issues that routinely flummoxes employers. The issue – Does an employer need to provide additional time off work for an employee who cannot return to work following a 12-week FMLA leave of absence? Addressing the issue head-on the appellate court issued a clear decision that, no, employers need not provide 2-3 months (or more, if needed) of time off work as an accommodation to a disabled employee. Employers rejoice! 

The facts of the case at issue are common to the sort of scenarios employers face every day. Mr. Severson, the employee, had a back injury for which he needed 12-weeks of FMLA for treatment. Lifting was an essential function of his job and while he had the back condition he could not perform that lifting requirement. Before the FMLA expired Severson notified his employer and provided a doctor’s note stating that he could not return to work for another 2-3 months because he needed time to undergo and recover from back surgery. The employer denied the request for additional time off. Severson sued. 

In court, the company argued that an additional 2-3 months off work was unreasonable and made Severson unqualified for the job at the time of the expiration of his protected FMLA leave. For their parts, Severson and the EEOC argued that Severson would be qualified to work in 2-3 months and, given that knowledge, the company should consider whether 2-3 months off work would be a reasonable accommodation. In response to these arguments the appellate court set forth a bright line rule – “a long-term leave of absence cannot be a reasonable accommodation.” The court did opine that short leaves, such as a day or a few days could still be reasonable, but it made very clear that 2-3 months is long-term and patently unreasonable under the ADA. Employers, therefore, do not need to accommodate employees with this amount of time off work. 

This is one of the more important and impactful decisions on the ADA to come from the courts in the past decade or more. Employers too often are asked to extend FMLA beyond the 12-weeks for disabled employees. Now there is great guidance from this court that says they need not do so when the request is for a long-term leave of absence. We will see if it is ultimately appealed and whether other courts fall in line.

Thompson Coe and myHRgenius Tip of the Week is not intended as a solicitation, does not constitute legal advice, and does not establish an attorney-client relationship.


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Kevin M. Mosher

Kevin M. Mosher


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