Just last week, Employers Council attorney and Arizona President Jennifer Ward reported that a writ of certiorari, or petition to hear a case, had been filed with the United States Supreme Court in the matter of Severson v. Heartland Woodcraft, Inc. (7th Cir. 2017). Late last week, the Supreme Court declined to hear the case.
For some, the denial of a hearing in Severson may appear as a missed opportunity for the nation’s highest court to clarify and resolve a long-standing “circuit split” (i.e. disagreement among the federal appeals courts) regarding whether an employer must grant leave as a reasonable accommodation under the Americans with Disabilities Act (ADA). And if such leave is required, beyond the entitlements in the Family and Medical Leave Act (FMLA), how much more time off is required?
For others, the Supreme Court’s rejection of the case for adjudication simply means that the decision of the United States Court of Appeals for the Seventh Circuit (which covers Illinois, Indiana, and Wisconsin) will stand. In that three-state jurisdiction, the case is considered to be favorable to employers, who now have some clarification as to whether they must grant ADA leave when FMLA leave has been exhausted or is inapplicable. Some legal experts also believe that the decision in Severson may encourage other federal appeals courts to issue similar decisions when confronted with the issue of post-FMLA time off.
Outside of Illinois, Indiana, and Wisconsin, employers must continue to rely on any decisions issued by the federal appeals court for their jurisdiction to determine whether such leave is required and, if so, how much. For reference, the United States Court of Appeals for the Tenth Circuit (which covers Colorado, Utah, Kansas, New Mexico, Oklahoma, and Wyoming) decided Hwang v. Kansas State University (10th Cir. 2014), which requires employers to provide “up to but not including” six months of time off under the Rehabilitation Act, the protections in which are virtually identical to what is provided for in the ADA. Such leave may run concurrently with or after FMLA entitlements.
In the Ninth Circuit (which covers Arizona, Alaska, California, Montana, Nevada, Oregon, Washington, and the territories of Guam and the Northern Mariana Islands), as with most other circuits, there is no maximum amount of time off delineated by case law. Instead, employers must make a case-by-case decision based on the level of undue hardship presented by the time off request in order to determine whether such time off is required as a reasonable accommodation. In the same circuit, this means that some employees may be placed on leave for a year or more before such an undue hardship exists. The standing, central case for the Ninth Circuit is Nunes v. Wal-Mart Stores, Inc. (9th Cir. 1999).
For questions related to leave management, an increasingly complex area of employment law with both federal and state law implications, Employers Council attorneys are ready to assist you as experts in the field.