The Americans with Disabilities Act (ADA) and the Maine Human Rights Act (MHRA) are comprehensive anti-discrimination statutes that prohibit discrimination against individuals with disabilities in private employment, state and local government employment, public accommodations, public transportation, state and local government services, and telecommunications. Title I of the ADA prohibits discrimination against any qualified individual with a disability in employment, and only employers with 15 or more employees are subject to the ADA.[1] But, unlike the ADA, the MHRA covers all employers operating in the State of Maine, regardless of size.[2] This is an important distinction in a state like Maine, which has many small businesses.
One of the most important rights mandated by the ADA and the MHRA is the right to reasonable accommodation. A “reasonable accommodation” is a modification or adjustment to the work environment, or to the manner or circumstances under which the position held or desired is customarily performed, that enables a qualified individual with a disability to perform the essential functions of that position.[3] Employers are required to make all of these types of reasonable accommodations to qualified individuals with disabilities, unless the employer “can demonstrate that the accommodation would impose an undue hardship on the operation of the business.”[4]
Arguably the most-requested reasonable accommodation under the ADA and the MHRA is for unpaid leave. An individual with kidney disease may need reasonable leave for dialysis; an employee with major depression may need reasonable time off for medical treatment; an individual with cancer may need leave for radiation therapy; an individual with substance use disorder may need time off for treatment. Most courts have held that unpaid leave is an appropriate reasonable accommodation for an individual who expects to return to work after recovering from an illness or getting treatment for a disability. The EEOC also takes the position that unpaid leave can be a reasonable accommodation.[5] The First Circuit has agreed with this position and found that temporary leave for the doctor of an employee to “design an effective treatment program” was a possible accommodation.[6]
But a 2017 decision of the Maine Supreme Judicial Court (the “Law Court”) in Carnicella v. Mercy Hospital put the right to a temporary leave as a reasonable accommodation in jeopardy.[7] Beth Carnicella, a nurse at Mercy Hospital, developed complications following surgery on her left arm. Ms. Carnicella took longer than expected to heal, and following the expiration of ten weeks leave under Maine’s Family Medical Leave statute, she requested extended leave as a reasonable accommodation. After several requested extensions of leave, Ms. Carnicella’s doctor estimated that she could return to work by June 1, 2014. But Mercy Hospital terminated her on March 15, 2014 after she failed to return to work by that date. Ms. Carnicella brought suit under the Maine Human Rights Act, alleging that Mercy Hospital discriminated against her when they failed to accommodate her request for extended leave.
In deciding for Mercy Hospital, the Law Court broadly interpreted an affirmative defense in the MHRA, 5 M.R.S.A. § 4573-A(1-B), and held in part that additional leave is unreasonable as a matter of law.[8] This decision was contrary to long-held precedent in Maine, the First Circuit and the U.S. Supreme Court, that reasonable leave and extended leave may be a reasonable accommodation, as long as it does not create an undue burden for the employer.[9] This decision made Maine an outlier, and the breath of its holding threatened to have a sweeping, detrimental effect on qualified individuals with disabilities who require a temporary absence from work due to a medical condition.
According to the U.S. Department of Labor, in 2018, the proportion of the population that is employed was 19.1 percent among those with a disability, compared with 65.9 percent for those without a disability.[10] Rather than addressing and increasing the rate of employment for people with disabilities, Carnicella explicitly removed the right of leave as a reasonable accommodation. This unprecedented decision was not only unsupported by precedent, but it was bad public policy. Under the reasoning in Carnicella, a qualified individual who needs radiation therapy or kidney dialysis could lawfully be fired for being away from work. This would only further impact the already dismal statistics on the employment of people with disabilities who want to work.
The Law Court’s alarming decision in Carnicella prompted us at Disability Rights Maine to lead an effort, joined by the Maine Human Rights Commission (“MHRC”), the Maine Employment Lawyers Association (“MELA”), Alpha One and Developmental Disabilities Council to file Motions for Reconsideration as Amici Curiae to urge the Court to reconsider the breath of its holding. As the Commission stated in its brief, “[r]ead broadly, the Court’s language allows this affirmative defense to eliminate leave as a reasonable accommodation in all circumstances, contrary to the Commission’s long-standing interpretation of the MHRA and to interpretations of the federal Americans with Disabilities Act (“ADA”).”
Unfortunately, the Law Court did not accept our collective invitation to reconsider its ruling, and this unprecedented decision stood.
But DRM did not give up. Undaunted, and subscribing to the old adage, “if at first you don’t succeed, try, try again,” DRM again teamed up with other civil rights organizations and helped lead an effort to draft legislation to correct the Carnicella decision. LD 1701, “An Act to Clarify Various Provisions of the Maine Human Rights Act,” corrected Carnicella by explicitly including leave as a reasonable accommodation in the non-exhaustive list of examples of reasonable accommodations found at § 4553(9-A) and repealing the defense that the Law Court relied on in §4573-A(1-B), the affirmative defense written into the law, because it is unnecessary and does not even exist in the ADA. The MHRA and the ADA already provide that an employer is not required to provide any accommodation that is an undue burden, therefore, there is no need for this affirmative defense in the MHRA.
LD 1701 was signed into law by Governor Janet Mills on June 23, 2019, and went into effect on September 19, 2019. This important bill restored the right to leave as a reasonable accommodation under the MHRA by clarifying that a leave of absence may be a reasonable accommodation, by both adding leave to the list of examples in the definition of reasonable accommodations in Section 4553 (9-A) and repealing Section 4573-A (1-B).
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[1] 42 U.S.C. § 12111(5) (covering most employers with 15 or more employees).
[2] 5 M.R.S.A. § 4553(4) (covering most employers regardless of size).
[3] 29 C.F.R. 1630.2(o)(1); 94-348 C.M.R., ch. 3, § 2(17)(A).
[4] 42 U.S.C. § 12112(b)(5)(A); 5 M.R.S.A. § 4553(2)(E).
[5] EEOC Reasonable Accommodation Guidance at fn. 48, https://www.eeoc.gov/policy/docs/accommodation.html.
[6] Criado v. IBM Corp., 145 F.3d 437 (1st Cir. 1998).
[7] Carnicella v. Mercy Hospital, 168 A.3d 768 (2017).
[8] Carnicella, 168 A.3d. at 774 (“The only accommodation that Carnicella arguably requested was additional leave. However, this accommodation was unreasonable as a matter of law[,]” citing 5 M.R.S.A. 4573-A(1-B).
[9] US Airways, Inc. v. Barnett, 535 U.S. 391, 397–398 (2002), and every circuit to consider the issue recognizes that leave can be a reasonable accommodation. See, e.g., Criado v. IBM Corp., 145 F.3d 437, 443 (1st Cir.1998); Walton v. Mental Health Ass’n. of Southeastern Pennsylvania, 168 F.3d 661, 671 (3rd Cir. 1999) (“unpaid leave supplementing regular sick and personal days might, under other facts, represent a reasonable accommodation”); Rodgers v. Lehman, 869 F.2d 253, 259 (4th Cir.1989) (decided under § 501 of the Rehabilitation Act); Cehrs v. Northeast Ohio Alzheimer’s Research Ctr., 155 F.3d 775, 782–783 (6th Cir. 1998); Haschmann v. Time Warner Entm’t Co., 151 F.3d 591, 601 (7th Cir.1998); Brannon v. Luco Mop Co., 521 F.3d 843, 849 (8th Cir. 2008); Nunes v. Wal-Mart Stores, Inc., 164 F.3d 1243, 1247 (9th Cir. 1999); Smith v. Diffee Ford-Lincoln-Mercury, Inc., 298 F.3d 955, 967 (10th Cir. 2002); Taylor v. Rice, 451 F.3d 898, 910 (D.C. Cir. 2006). See also Graves v. Finch Pruyn & Co., Inc., 457 F.3d 181, 185 n.5 (2nd Cir. 2006) (“Most other circuits and the Equal Employment Opportunity Commission have concluded that, in some circumstances, an unpaid leave of absence can be a reasonable accommodation under the ADA.”).