Labor & Employment Law I FEBRUARY 10, 2021

Extended Leave of Absence Is Still Not a Reasonable Accommodation

In June 2016, Paula McAllister was in an automobile accident that left her with serious head and back injuries. McAllister worked for Innovation Ventures, LLC, the producer of the dietary supplement 5-hour ENERGY®.

McAllister applied for short-term disability benefits and medical leave under the Family and Medical Leave Act of 1993. Dr. Jeffrey Kachmann submitted an FMLA certification indicating McAllister was unable to perform “any and all” functions. He believed that McAllister could not return to work until September 8, 2016.

At an October 26, 2016 meeting, McAllister notified Innovation that she still could not return to work. Innovation refused to extend her leave and terminated her on December 14, 2016.

McAllister sued, asserting that Innovation failed to accommodate her during the summer of 2016 in violation of the Americans with Disabilities Act (ADA). The federal district court ruled against McAllister, concluding she was not a “qualified individual” under the ADA. McAllister appealed, though unsuccessfully. The following excerpts explain what happened on appeal.

The appeals court said that under the ADA, the plaintiff bears the burden of proving that she is a ‘qualified individual with a disability’—that is, a person ‘who, with or without reasonable accommodation, can perform the essential functions’ of her job.

The court went on to say that once an employee is evaluated by a doctor, an employer is entitled to rely on a physician’s recommendation that the employee is not able to safely perform an essential function of his job. Thus, absent evidence to the contrary, a doctor’s view that an employee cannot return to work—in any position—means an employee cannot establish that she is a qualified individual with a disability under the ADA.

In this case, McAllister’s doctors maintained throughout that she had not improved, and Innovation was entitled to rely on the doctors’ recommendations.

McAllister tried another tactic—Innovation could have granted her additional leave.

This argument ran aground on existing case law. “Inability to work for a multi-month period removes a person from the class protected by the ADA.” Byrne v. Avon Prod., Inc., 328 F.3d 379, 381 (7th Cir. 2003).

In Severson v. Heartland Woodcraft, Inc., the court of appeals expanded on Byrne, holding that a “multi-month leave of absence is beyond the scope of a reasonable accommodation under the ADA.” 872 F.3d 476, 479 (7th Cir. 2017). The court quoted from Severson:

[A] long-term leave of absence cannot be a reasonable accommodation. As we noted in Byrne, “[n]ot working is not a means to perform the job’s essential functions.” Simply put, an extended leave of absence does not give a disabled individual the means to work; it excuses his/her not working. Accordingly, we held in Byrne that “[a]n inability to do the job’s essential tasks means that one is not ‘qualified’; it does not mean that the employer must excuse the inability.”

Id. at 481 (citations omitted).

Closing out the loss for McAllister, the appeals court said “[t]he four months of leave she would have required would have been on top of the two and a half months of leave Innovation gave her between June and August 2016. Far from a modest two to four weeks of leave, four months (or six and a half months if we include the initial two and a half months) is plainly not a reasonable accommodation. Affording McAllister such prolonged leave effectively excuses her inability to work, which the ADA does not require of employers.” Judgment for Innovation was affirmed.

Paula McAllister v. Innovation Ventures, LLC 983 F.3d 963 (7th Cir. 2020)