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Bad back? You’re fired

Bad back? You’re fired

Employers rely upon employees to get the job done. Usually, the “job” requires the employee’s physical presence at work. But injuries and medical conditions throw a wrench in the works. Most employers are at least generally aware of the implications of various federal and state laws governing treatment of employees with medical conditions and injuries. Yet, there is plenty of gray area where employers may be subject to liability. Take for example the recent decision in Severson v. Heartland Woodcraft, Inc. where the Seventh Circuit decided whether an employer could terminate an employee who requested a multi-month leave of absence from employment.

Severson had been working for his employer for approximately seven years when he aggravated a preexisting back condition while off duty at home. He was granted 12-weeks of medical leave, as provided under the FMLA, due to what was later diagnosed as multiple herniated and bulging discs in his lumber spine. During his leave he was treated with steroid injections, to little effect. Towards the end of Severson’s FMLA leave he requested an additional two or more months leave so that he could undergo disc decompression surgery. Severson’s request was denied and he was informed his employment would be terminated when he exhausted the 12- weeks of FMLA leave.

Severson subsequently sued his employer for failing to accommodate his physical disability, specifically pointing to an accommodation in the form of a two-or three month leave of absence.

Generally speaking, the FMLA is a medical leave statute, while the ADA is an antidiscrimination statute that forbids discrimination against a “qualified individual on the basis of a disability.” The ADA defines a “qualified individual” as a person with a disability who, with or without a reasonable accommodation, can perform the essential functions of the employment position. In denying Severson’s claim, the court reasoned that an employee who needs long-term medical leave cannot work and thus is not a “qualified individual” under the ADA. Simply put, a long-term leave of absence cannot be a reasonable accommodation because an extended leave of absence does not give a disabled individual the means to work; it excuses him or her not working.

However, the court seemingly did not entirely close the door on leave as a form of a reasonable accommodation. Specifically, the court said “[i]intermittent time off or a shorter leave of absence– say, a couple of days or even a couple of weeks– may, in appropriate circumstances” be a reasonable accommodation.

While Severson articulates the rule of the law for the Seventh Circuit, other circuits, including the Fifth, Sixth, Ninth, and Tenth, have recognized multi-month leaves of absence as a reasonable accommodation under the ADA. Employers in all jurisdictions are well advised to contact an employment law attorney when these complicated situations involving employee medical conditions arise.

By Seth L. Laver, Christopher P. Maugans and Caroline J. Berdzik of Goldberg Segalla

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