With the New Year fading from view in the rearview mirror and spring on the horizon (at least for those of us in the Midwest), there are several signs that disability and leave management issues will continue to be hot topics in 2018.
First, a review of the EEOC’s press releases from the first two months of this year suggests a continued focus by the Commission on disability and leave management issues. Since the start of the year, the EEOC has filed six lawsuits alleging claims of disability discrimination, including two cases which appear to involve requests for leave as a reasonable accommodation under the ADA. Further, the EEOC’s press releases reveal that the Commission has collected $405,500 from employers in the past two months in settlement of disability discrimination claims. There is no reason to believe that EEOC scrutiny of disability or leave management issues is likely to dissipate anytime soon.
Second, on January 18, 2018, after a landmark decision for employers in which the U.S. Court of Appeals for the Seventh Circuit held that a request for a two-to-three-month leave of absence is not a reasonable accommodation under the Americans with Disabilities Act, the plaintiff in Severson v. Heartland Woodcraft, Inc. petitioned the Supreme Court to review his case. Specifically, the plaintiff/petitioner asked the Supreme Court to decide if there is a “per se rule that a finite leave of absence of more than one month cannot be a ‘reasonable accommodation’ under the ADA.” The defendant/respondent filed a brief opposing the request on February 14, 2018, framing the issue as “[w]hether an employee seeking a multi-month leave of absence following three months of FMLA leave is a ‘qualified individual’” under the ADA “given that such leave of absence does not enable the employee to ‘perform the essential functions of the employment position’…during the period of leave.”
While it is unclear whether the Supreme Court will agree to hear the case, we previously predicted that the importance of the Seventh Circuit ruling makes Severson a likely candidate for review by the high court. We will continue to monitor the Supreme Court docket for further updates.