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In this edition of The Proskauer Brief, senior counsel Harris Mufson and associate Laura Fant discuss the challenges and pitfalls surrounding requests for multiple medical leaves of absence. We will talk about the obligation of employers to provide reasonable accommodation under the Americans with Disabilities Act and related laws. We will also discuss a recent decision from the Seventh Circuit holding that extended leaves of absence may not be required to be granted in all circumstances, and talk about how courts in other jurisdictions, as well as the EEOC, take a very different approach.  Managing employee leave is a challenge that many employers and HR professionals face every day, so be sure to tune in for an update on this timely and relevant topic.

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Harris Mufson: Welcome to the Proskauer Brief Hot Topics on Labor and Employment Law. I’m Harris Mufson and today I’m joined by Laura Fant. On today’s episode we’re going to discuss a topic that employers often grapple with.  Repeated requests for leaves of absences.  So let’s get started.

So Laura on this topic of repeated requests for leaves of absences there was a recent decision by the Seventh Circuit in Severson v. Heartland Woodcraft, Inc. that really addressed this issue and so can you walk our listeners through that case basically just provide an overview and we can follow up.

Laura Fant: Absolutely. So in this case, we have an employee working for Heartland Woodcraft, working in a pretty physically demanding position and the employee starts experiencing some pretty severe back pain. So he requests and is granted 12 weeks of FMLA leave and then at the very end of the FMLA leave he finds out that he needs surgery and goes back to the employer and requests about 2 to 3 additional months of leave for the procedure and recovery. The company tells him that it cannot grant his request for an extended leave and that his employment will in fact be terminated at the end of his FMLA leave period but that he’s welcome to reapply for any open positions down the road if and when he’s cleared to work again. So about three months later the employee is indeed cleared to work but rather than apply for an open position he brought suit against the employer under the ADA alleging that the employer failed to reasonably accommodate him by granting the extended leave of absence.

Harris Mufson: So what did the Court hold in that case? How did they come out?

Laura Fant: The District Court relied on actually a prior Seventh Circuit case from 2003 in fact granted Summary Judgment in favor of the employer and dismissed the claims. So then we go on appeal up to the Seventh Circuit and the Seventh Circuit affirmed and what they basically said is that the ADA it’s an anti-discrimination statute but it’s not a medical leave entitlement. You know it protects people who are qualified individuals with a disability and while it does require that employers provide reasonable accommodation to employees, reasonable accommodations are those that enable employees to perform the essential functions of the job and what the Seventh Circuit concluded is that an extended leave of absence doesn’t in fact accomplish this because the employee is not performing the essential functions during that time and effectively the employee is no longer a qualified individual able to do the job.

Harris Mufson: So this is a decision by the Seventh Circuit. Have other Circuit Courts grappled with the same question?

Laura Fant: So you know, this is in fact a bit of an outlier here I would say. Many courts, and in fact I would probably say, most courts who address this issue, lean towards the EEOC’s position on this topic, which is effectively that longer term leaves of absence may in certain circumstances be reasonable accommodations if they don’t pose an undue hardship on the employer.

Harris Mufson: So it’s important to note that while the Seventh Circuit has now rendered this decision that courts and other circuits may very well disagree and frankly this is an issue that could eventually surface itself to the Supreme Court potentially.

Laura Fant: That’s absolutely right and you know another thing to note that for employers who operate outside of the Seventh Circuit is that even in this case, Severson, the EEOC stood by its position that extended leaves could be a reasonable accommodation so if you’re outside of the Seventh Circuit not only may other Courts lean in a different direction but the EEOC takes a different position.

Harris Mufson: And speaking about taking a different position, particularly for employers in New York City, that were subject to the New York City Human Rights Law, Courts have held that that law is broader and more expansive than the ADA. Can you touch on that a little bit?

Laura Fant: Absolutely. Back in 2003 the New York Court of Appeals, which is the highest Court in New York State, issued a decision in a case called Romanello v Intesa Sanpaolo and basically what the Court said in that case is that while under the ADA and even under the New York State Human Rights Law, a request for what’s often called indefinite leave, and that’s either when an employee can’t provide a date that they expect to be back to work or where they keep requesting additional leaves of absence after one ends, so repeated requests. In those cases, even under the ADA and the New York State Human Rights Law, many Courts say when you reach that point of indefinite leave, it’s no longer a reasonable accommodation. But in Romanello what the New York Court of Appeals said is that because the New York City Human Rights Law provides broader protections for employees, even if you’re in an indefinite leave situation or an employee has requested repeated times to extend their leave, an employer still needs to show that granting that request would pose an undue hardship before it can deny granting that as an accommodation.

Harris Mufson: So in terms of navigating these sort of issues that being employees’ repeated requests for multiple leaves of absences on the back of one another, what are some sort of recommendations that we have for employers who are facing those issues?

Laura Fant: Well I think that this is really one of the trickiest situations that many employers and HR professionals face. I’d say the one big key takeaway here is that every request for leave should be analyzed on a fact‑specific basis. Courts and the EEOC are very clear that you know every case is different and should be analyzed on its own merits. So there are a number of factors that employers should consider when looking at requests for repeated leaves of absence including the type of position, the duties of the position, the size of the employer, the specific business needs that they’re facing. Another thing I would say is that while employees are out on leaves of absence, a key thing that employers should remember is to remain in communication with that employee. While of course you shouldn’t be harassing the employee and calling them every day, employers do have a right to remain in reasonable contact with their employees and find out you know what the time line for return is, what the expectations for return are and that’s a way that they can attempt to manage expectations both of the employee and their own business needs throughout an extended leave of absence.

Harris Mufson: All excellent recommendations and something that really is important is drilling down on the specifics of every circumstance and I know employers struggle with this but we’re obviously here to help them navigate through these challenging issues. Thank you very much Laura.

Laura Fant: Happy to be here.

Harris Mufson: Thank you for joining us on the Proskauer Brief today. Stay tuned for more insights on the latest hot topics and Labor and Employment Law and be sure to follow us on iTunes.

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