When is Enough, Enough? Limiting Leave as a Reasonable Accommodation under the ADA
Lexology
Q: How long does an employer have to accommodate an employee’s disability in the form of a leave of absence?
A: The law in most jurisdictions is unclear. In fact, in most jurisdictions, including Pennsylvania, New Jersey, and New York, there is no bright line rule as to the length of leave time that is reasonable under the ADA. Typically courts look at the surrounding circumstances to determine whether the amount of time off is a “reasonable accommodation” and have held that leaves longer than three months were required in some circumstances as a reasonable accommodation.
Given this lack of certainty, employers are left with the daunting task of determining how much leave is “reasonable,” thus forcing many employers to typically extend leaves beyond what they may believe is proper. To add to the uncertainty, the EEOC, which is the employee’s first pit stop in bringing an ADA claim, has taken the position that a two-to-three month leave, or longer may be reasonable. Moreover, state laws protecting disabled individuals, such, for example, the New Jersey Law Against Discrimination, may provide for even greater protections to the employee.
A recent Seventh Circuit Court of Appeals case, however, has provided some concrete direction, at least to employers with employees located in Illinois, Wisconsin, or Indiana, regarding the amount of leave required as a reasonable accommodation under the ADA. In that case, the Court held that a multi-month leave likely was not required as a reasonable accommodation under the Americans with Disabilities Act.
In Severson v. Heartland Woodcraft, Inc. No. 15-3754 (7th Cir. Sept. 20, 2017), the employee brought a lawsuit after the employer terminated his employment rather than give him two to three months of additional leave to recuperate from back surgery after he had used up his Family and Medical Leave Act allotment. The Court of Appeals for the Seventh Circuit, which covers Illinois, Indiana, and Wisconsin, stated that the ADA is “not a medical leave entitlement” and specifically held that “a multi-month leave of absence is beyond the scope of a reasonable accommodation under the ADA.” In particular, the Court held that a such a multi-month leave cannot be a reasonable accommodation because a reasonable accommodation allows a disabled employee to work and perform the essential functions of the position, which the employee in this case could not do, thus disqualifying him from the protections of the ADA. The Court noted however, that a short leave of absence—say, a couple of days or even a couple of weeks—may, in appropriate circumstances, be a reasonable accommodation. Although the Severson case provides support for the position that extended, multi-month leaves of absence may not be required under the ADA, employers should not take it as a green light to reject all requests for a leave of absence under the ADA.
The Severson case is binding law only in the Seventh Circuit. It remains to be seen whether other courts will follow the Seventh Circuit’s lead in limiting the amount of leave that is considered to be “reasonable.” Until that occurs, however, employers should tread lightly when making these decisions and consider all of the risks and benefits associated with rejecting a leave request.
The ruling that will make you question everything you know about ADA leave
HR Dive
HR Dive editor Kate Tornone discusses what the ruling means for HR in this installment of "Other Duties as Assigned."
The Americans With Disabilities Act Strikes Again -- Movie Theaters Must Now Provide 'Interpreters'
Forbes
The Americans with Disabilities Act (ADA) is a vague, feel-good statute that has led to a great many absurd decisions.
Last year, for instance, the University of California had to take down thousands of free educational videos because they were not perfectly accessible to those with hearing or visual problems. (I wrote about that decision here; that story may turn out to have a happy ending, however, since as John Stossel explains in this story, the videos were copied by an entrepreneur before Berkeley deleted them and he’s making them available on a new site.)
A new ADA decision by the Third Circuit Court of Appeals is at least as ridiculous as the order to take down those videos.
In McGann v. Cinemark, the court dealt with a complaint by Paul Richard McGann, a deaf and blind individual, who wanted to enjoy a movie (specifically, “Gone Girl”) being shown in a Cinemark theater. McGann is able to communicate through a tactile version of American Sign Language. He requested that Cinemark provide a tactile interpreter for him. When Cinemark declined to do so, he filed suit alleging that the company had violated the ADA by refusing to accommodate his disability.
Hospitals Agree to Improve Access for Persons With Disabilities
New York Law Journal
Several New York City-based health care institutions have agreed to update their buildings and infrastructure to make them accessible for patients and visitors with disabilities, settling a years-long lawsuit.
As part of a settlement agreement filed Thursday, Beth Israel Medical Center, St. Luke’s-Roosevelt Hospital Center, New York Eye and Ear Infirmary, and Continuum Health Partners—which are now part of the Mount Sinai Health System—have agreed to identify and update architectural barriers at more than 10 hospitals and outpatient facilities in Manhattan and Brooklyn to make them compliant with the Americans With Disabilities Act.
AG steps in to fight 'malicious' ADA litigation
KTNV Las Vegas
Hundreds of Las Vegas businesses are maliciously targeted in federal court according to Nevada's Attorney General. Contact 13 has new information in an on-going effort to expose what the state calls an abuse of the system.
Attorney General Adam Laxalt announced today that a U.S. District Court judge will allow the state to intervene on behalf of local businesses being sued. They're accused of failing to comply with the American with Disabilities Act. But the AG claims the cases are just motivated by money.
We tried to find Kevin Zimmerman in August. He's the plaintiff in some 275 discrimination cases filed in federal court. The cases cite slight problems with ADA design standards -- like the exact width of store aisles, location of restroom paper towel dispensers and the height of disabled parking signs.
Woman with 'stone man syndrome' sues Hamilton County for 'intentional discrimination' under ADA
WCPO
A local woman with a rare, disabling genetic condition has filed a federal lawsuit against 19 Hamilton County officials and service providers, charging them with discrimination under the Americans with Disabilities Act.
In the lawsuit, Jessica Scully alleges a variety of discriminatory practices that have caused her “extreme emotional distress that has made her suicidal.” The allegations include:
• Hamilton County Developmental Disability Services “have failed, refused, or caused outrageous delay in providing Plaintiff with services for her qualifying conditions.”
• Hamilton County DDS “provided the wrong benefit, aid, or services required by someone with her disabilities.”
• The Southwest Ohio Regional Transit Authority, or SORTA, denied her access to public transit that she is entitled to receive.
• Hamilton County commissioners and DDS board members and staff allowed the problems to continue despite Scully’s repeated complaints and requests for help.
• Generations of Providers, a home health care services provider, breached its “standard duty of care” when its staff failed to show up for overnight shifts, failed to tell Scully that her home had become infested with bedbugs and hired a service provider who stole Scully’s credit card while on duty.
• And M.C. Mobility Systems, a van modification and lift installation service, was negligent in its work installing a lift system and wheelchair-locking mechanism for Scully’s van.
Former Student Sues UCSD, Alleging Disability Discrimination
The Triton
A former undergraduate student is suing UC San Diego, alleging that the university failed to accommodate his disability throughout his undergraduate career.
Shahram Jazirian, who entered Warren College as a bioengineering undergraduate transfer student in 2012 and left in 2015, is suing the Regents of the University of California and Chancellor Pradeep Khosla. Jazirian and his attorneys allege that he was failed by several tiers of university staff, from Counseling and Psychological Services (CAPS) to the financial aid office to various administrators.
Jazirian claims university staff intentionally refused his requests for accommodation, and that this resulted in him being on academic probation and eventually losing his financial aid. Court documents also show that university employees sent emails referring to Jazirian as “Michael Myers,” the villain from Halloween; allegedly suggested that after losing his financial aid, he should go to a homeless shelter; and warned students and staff about him, despite acknowledging he was not a threat to the campus.
Will Trump's Justice Department Pay Attention to Disability Rights?
Mother Jones
When Kellan Powell was in the first grade in 2011, he and his family moved from Ohio to Georgia. Kellan is on the autism spectrum and being uprooted came during an especially rough time in his life. His mother Kerstin says he had been traumatized after a substitute teacher restrained him, giving him bruises and making him wary of teachers; once in a Georgia public school, he needed extra support. Finally, in third grade, school administrators decided Kellan’s needs could not be met in the neighborhood school and suggested that he attend the Georgia Network for Educational and Therapeutic Support, a separate state-wide network of schools for students with disabilities and behavioral problems.