Cracks starting to show in Severson, experts say

Dive Brief:

Courts are beginning to chip away at a landmark Americans with Disabilities Act (ADA) ruling from last year, Severson v. Heartland Woodcraft, Inc. (No. 15-3754 (7th Cir. 2017), cert. denied, No. 17-1001), speakers told attendees at the 2018 Disability Management Employer Coalition Annual Conference Aug. 7.
The ruling, issued in late 2017, held that a multi-month leave of absence is not a reasonable accommodation under the ADA and sent shockwaves through the employment community. But employers, even those in the 7th Circuit, shouldn’t place too much weight on Severson, Jeff Nowak, partner at Franczek Radelet noted, pointing out that, for one thing, "there were some really conservative judges on that panel."
On the other hand, however, the judges hammered the employer during oral arguments for its potential failure to engage in the interactive process and look at alternative accommodations, he said, "and I think that’s where we’re going to see courts chip away at Severson." If anything, employers can expect to see judges take a cue from the judges in that case and question businesses about whether they could have done more. And it’s already happening, Nowak and Matt Morris, VP of FMLASource, ComPsych Corporation, said. Employers need look no further than a ruling issued right on the heels of Severson: Golden v. Indianapolis Housing Agency, (No. 17‐1359 (7th Cir. 2017), cert. denied, No. 17-1113). That ruling followed Severson, but not without calling it into question, the speakers said. And since then, two district courts have chipped away at the ruling, they said. In EEOC v. S&C Electric and EEOC v. Midwest Gaming and Entertainment, the U.S. District Court for the Northern District of Illinois held, respectively, (1) that employers can’t retroactively apply Severson to a leave already granted if the employee is ready to return; and (2) that courts still must apply a fact-specific inquiry, considering the total record.

Dive Insight:

Following Severson, experts urged employers to exercise restraint and to continue evaluating each request for leave on a case-by-case basis.

In light of these recent cases, that advice seems to be even more important. Even when an employee requests indefinite leave — which is never "reasonable" under the ADA — you still need to respond to that, Nowak said. At a minimum, ask some questions, and "make sure that you can establish that you’ve looked at all other accommodations before you terminate employment."

Morris agreed: "Every case needs an individualized process," he said. "Despite what Severson says, always engage in the interactive process;" courts are saying that employers must undertake a good-faith exploration.

The same goes for leave extensions. Generally, employers need to consider providing finite leave unless there's an undue hardship, Nowak said. As long as it's not indefinite, federal guidance assumes it's reasonable unless you can show undue burden. That’s "a bit troubling," Nowak acknowledged, adding that "if we ever get guidance from the courts, I’m not sure that’s going to stand." For now, however, that guidance stands.

The key is communication, Morris said. "When you’re communicating with the employee, make sure that you’re doing so thoughtfully and respectfully," he recommended, “because those words show up later as judges are trying to figure out what happened." If the employer can show that it tried to help, "and that it did so in a friendly and respectful way, that stuff goes a long way."

Nowak agreed, adding a recommendation that employers document these conversations, including the alternative accommodations that were discussed. "That’s going to be really effective," he said.