How Much is Too Much? [FMLA and More]

by Ethan R. O’Shea, Esq.

I often receive inquiries from employers asking whether they have to allow an employee to take unpaid medical leave after the employee’s sick time is exhausted, or after the employee’s Family Medical Leave Act (FMLA) leave expires. Often there is no clear cut answer. The federal courts, most notably the Third Circuit which covers federal cases filed in Pennsylvania, have ruled that extended unpaid leave of a limited duration is a necessary reasonable accommodation under the Americans with Disabilities Act (ADA). The question thus becomes what is a limited duration? Indefinite leave is clearly not a reasonable accommodation, but what if an employee informs his employer that he can return to work in six months? Questions such as this have been troubling employers and their attorneys alike for years. The United States Court of Appeals for the Seventh Circuit may have just shed some light on this issue. On September 20, 2017, the Seventh Circuit ruled that an employee’s request for two or three months of unpaid leave beyond the 12 weeks granted by the FMLA is not a reasonable accommodation.

In the Seventh Circuit case the employee suffered a disabling condition, namely a serious back injury that required surgery. As the employee’s 12 weeks of FMLA leave was about to expire, the employee underwent surgery that required a two to three month recovery period. When the employer terminated his employment (and advised the employee that he could reapply once clear to return to work), the employee initiated a lawsuit alleging a violation of the ADA. In rejecting his claim, the Seventh Circuit noted that the ADA is an anti-discrimination statute and not a medical-leave statute. Further, the court stated that the ADA forbids discrimination against a “qualified individual” on the basis of disability, but that an employee who needs long-term medical leave and cannot work is not a “qualified individual.” The court determined that a reasonable accommodation is an accommodation that allows the disabled employee to perform the essential functions of his job, and therefore long-term leave cannot be considered a reasonable accommodation inasmuch as the employee will not be able to perform the essential functions of his job.
The Seventh Circuit did not go so far as to say any leave beyond the 12 weeks mandated by the FMLA is unreasonable, and specifically noted that intermittent time off or a short leave of absence of a few days or even a few weeks may be a necessary accommodation. However, a medical leave spanning multiple months does not permit the employee to perform the essential functions of his job and is therefore not a required accommodation under the ADA. While the Seventh Circuit’s decision is not binding on Pennsylvania courts, it certainly provides guidance on this very common yet troubling problem.