HR Arbitration and Eggs: Ditching the Bad Rap

HR Arbitration and Eggs: Ditching the Bad Rap

Eggs got a bad rap as cholesterol-soaked death-bombs. Researchers later realized that cholesterol wasn’t so bad for you after all, but the real problem was the greasy bacon and sausage often served with eggs. The eggs weren’t the issue; the pairing with fatty pork was.

Seventh Circuit: You want extended leave? Tell it to the FMLA. The ADA isn’t listening.

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Whisper the words “ADA leave” in an HR professional’s ear and see what happens. It won’t be pretty.

The FMLA guarantees covered employees 12 weeks of unpaid medical leave, but the ADA might require more. Trouble is, no one is 100% clear how much more.

Since the EEOC decided that the ADA might require employers to give extended leave as a reasonable accommodation, employers have struggled. The EEOC basically said: “Extended leave is required, except when it isn’t.” Although the EEOC let employers off the hook for extended leave if it would be an “undue hardship,” employers squinted hard to see when leave crossed that blurry line. Sure, an employer could safely deny leave for an “indefinite duration” or without any real expectation of when the employee would be fit for work again. The EEOC and courts were fine with that. But if a medical provider could take a rough stab at when the employee would come back to work, employers denied extended ADA leave at their own peril.

The 7th Circuit won’t have it. Extended leave flat out can’t be an ADA reasonable accommodation. That’s what the FMLA is for. Check out Severson v. Heartland Woodcraft for the details.

For the 7th Circuit, the ADA’s text sealed the deal. The ADA says that a reasonable accommodation lets the employee “perform the essential functions” of the job. But extended leave just gets an employee out of work. It doesn’t make work possible – as a reasonable accommodation must do.

A couple days or weeks of leave might be reasonable. The 7th Circuit can go that far, but won’t budge on leave that lasts a couple months.

The 5th Circuit hasn’t gone that far yet. But in the right cases, shouldn’t employers push?

Look harder at ADA requests for leave over a month. That much leave might be unreasonable or an undue hardship – it might cause co-workers to work longer or harder, it might be for an indefinite period, it might rack up labor costs with significant overtime hours. Even if the court doesn't buy that, an employer might whip out Severson for the win.

HR Legal Needs Heart: Texas Lawyer

HR Legal Needs Heart: Texas Lawyer

Alan Bush is a freelance contributor for Texas Lawyer. His latest article, “HR Legal Needs Heart” appeared in the In-House Focus section on September 1, 2017.

HR legal needs more than a good head on its shoulders – it needs a good heart in its chest. Here’s what Alan had to say about it:

HR Southwest 2017: Employment Law Under the Trump Administration

HR Southwest 2017: Employment Law Under the Trump Administration

HR Southwest is the second largest SHRM conference in the US, behind the national conference. HRSW has tapped Alan Bush to speak for the sixth year running – this time, on three topics.

Alan will cover the new administration’s take on employment law in this topic:

Legal Exchange: Employment Law Under the Trump Administration

HR Southwest 2017: Living With the Complaining Employee

HR Southwest 2017: Living With the Complaining Employee

HR Southwest is the second largest SHRM conference in the US, behind the national conference. HRSW has tapped Alan Bush to speak for the sixth year running – this time, on three topics. Lee Winkelman will join him again this year.

Alan and Lee will cover retaliation claims in this topic:

Living With the Complaining Employee