Earlier this month, the U.S. Supreme Court declined to hear the case of Severson v. Heartland Woodcraft, a U.S. Court of Appeals for the Seventh Circuit decision that narrowed the protections of the Americans with Disabilities Act (ADA). Since the Supreme Court has refused to hear the case, the decision of the lower court stands—significantly restricting the protections employees can expect when they are temporarily unable to work thanks to an illness or injury.
In Severson, the plaintiff, Raymond Severson, had a physically demanding job at the Wisconsin-based company Heartland, which manufactured retail display fixtures. Severson had to take a full 12 weeks of Family and Medical Leave Act (FMLA) leave to deal with his serious and long-term back pain. FMLA provides employees that work at companies with 50 more employees a total of 12 unpaid weeks of leave for certain covered medical circumstances, including the birth and care of a child, the care of an immediate family member with a serious health condition, or the serious health issue of the employee themselves. On the last day of his FMLA leave, Severson had to undergo back surgery, which resulted in him needing two to three additional months of leave before he could return to work. Instead of being granted the leave, he was fired.
Severson sued, saying that Heartland did not provide him with a reasonable accommodation under the ADA when it failed to give him the extended leave. The ADA requires employers to provide accommodations to individuals with disabilities, be they temporary or permanent. A reasonable accommodation for existing employees with a disability are, according to the Equal Employment Opportunity Commission (EEOC), “modifications or adjustments to the work environment, or to the manner or circumstances” of a position that allows the individual with a disability to continue working.
The problem is that the 12 unpaid weeks offered by FMLA, which is done so outside the ADA, are sometimes not enough for employees to address long-term health issues. Severson’s back injury is a perfect example. The court’s decision made clear that there was no question Severson would have been able to return to work after he healed from his back injury, but that didn’t seem to matter to his company.
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The EEOC supported Severson’s lawsuit, as that agency has previously provided non-binding guidance to employers explaining that the use of accrued paid leave or unpaid leave is a form of reasonable accommodation when necessary. As recently as August 2017, the EEOC reached a settlement with UPS over that company’s inflexible 12-month disability leave cap, which the agency said violated the ADA. Other courts, including the Ninth Circuit and the First Circuit, have also already held that providing extended leave is a reasonable accommodation.
Still, the Seventh Circuit held that the ADA wasn’t a “medical-leave entitlement” statute; instead, it argued, the law is limited to being an anti-discrimination statute. The court limited the definition of “reasonable accommodation” to include only “those measures that will enable the employee to work.” Someone who needs medical leave, they reasoned, can’t work, so they don’t qualify under the ADA. The court went on to say that leave is the domain of FMLA, conveniently ignoring the fact that Severson had exhausted his 12 weeks of leave under that law.
The Seventh Circuit’s narrow view of the ADA isn’t just vicious; it’s short-sighted. If people can’t take extended leave while they deal with a situation that will eventually resolve itself enough for them to work at their current job, those people will lose their jobs. And it’s tough to go on the market after you’ve lost a job—tougher still if you have a condition that employers, regardless of their requirement to treat potential employees fairly, perceive as a disability. Long-term unemployment, particularly combined with an ongoing medical condition, shoves people into Medicaid. However, the administration’s proposed 2019 budget included a staggering $1.4 trillion in proposed Medicaid cuts. Worst still, Wisconsin is a state that refused the Medicaid expansion. This decision may potentially swell the rolls of Medicaid at a time when those kinds of states can least absorb them.
The decision could also affect those who need more time than the 12 unpaid weeks they are limited to under FMLA to recover from pregnancy. And unlike most other industrialized nations, the United States does not mandate any paid leave for childbirth. At the same time, severe maternal morbidity—unexpected significant short- and long-term health consequences that arise due to pregnancy—is on the rise in the United States and affected more than 50,000 women in 2014. Up to one in seven people experience postpartum depression after giving birth, a condition that can be debilitating and can sometimes last for months. All of these circumstances give rise to the possibility that more than 12 weeks of leave would be needed.
Employers—and law firms that represent employers—openly cheered the decision. And why wouldn’t they? It erases a major accommodation requirement and ensures that employers that do not have their workers’ best interests at heart can can swiftly remove anyone with a condition that requires more than a meager 12 weeks of leave.
Fortunately, at this time the decision only applies in the states that comprise the Seventh Circuit. However, as President Donald Trump continues to stack the courts with conservative judges, there’s no reason to believe that this trend won’t continue across the nation. Courts are supposed to be the bulwark against the depredations of employers eager to decrease the rights of employees, but that isn’t happening right now, and it will probably stay that way for a long time.