Risk Insider: Terri Rhodes

7th Circuit’s ADA Ruling: Important, but Limited

By: | November 27, 2017 • 4 min read
Terri L. Rhodes is CEO of the Disability Management Employer Coalition. Terri was an Absence and Disability Management Consultant for Mercer, and also served as Director of Absence and Disability for Health Net and Corporate IDM Program Manager for Abbott Laboratories.

There’s been a lot of excitement about the 7th Circuit’s recent ruling on granting additional leave as an accommodation under the Americans with Disabilities Act (ADA).  Some observers have gone so far as to claim the ruling “changes everything we know about the ADA.”


There’s no doubt the 7th Circuit’s ruling is a significant thing.  But to avoid trouble, it’s important to keep it in perspective.

Here’s a quick recap of how we got here.

In 1997, the Equal Employment Opportunity Commission (EEOC) filed suit against Sears Roebuck & Co.  The EEOC alleged the retail company discriminated against a salesperson by refusing to provide her with additional leave as a reasonable accommodation under the ADA. The EEOC said that Sears “maintained an inflexible worker’s compensation one-year leave policy which does not provide for reasonable accommodation of employees with disabilities.”

The U.S. District Court for the Northern District of Illinois ruled in favor of Sears. The EEOC appealed. The 7th Circuit Court of Appeals decided there was enough evidence for a jury trial and sent the case back to the District Court. In 2010, the case settled for $6.2 million.

And then there is perhaps the decision’s most quoted line: “The ADA is an antidiscrimination statute, not a medical-leave entitlement.”

Several other circuit courts followed suit. However, 20 years later, along comes Severson v. Heartland Woodcraft, Inc.

The 7th Circuit seemed to reverse itself when it affirmed a district court’s ruling that an employer did not violate the ADA by failing to provide an employee with a long-term medical leave of absence because a multi-month leave of absence was beyond the scope of a reasonable accommodation under the ADA.

The ruling itself rightly caught peoples’ attention. So did some of its language. For example, the 7th Circuit stated that “a long-term leave of absence cannot be a reasonable accommodation” under the ADA.  It went on to say such a leave would transform the ADA “into a medical-leave statute — in effect, an open-ended extension of the FMLA.” And then there is perhaps the decision’s most quoted line: “The ADA is an antidiscrimination statute, not a medical-leave entitlement.”

But before employers get too excited, it’s important to note some very important caveats.

The 7th Circuit is one court. Circuit courts in other jurisdictions have reached differing conclusions on this issue. Further, the EEOC continues to take the position that leaves of absence may constitute reasonable accommodation in certain circumstances. “Inflexible” leave policies could still be in the EEOC’s sights.

Most importantly, the 7th Circuit offers no statutory citation for its conclusion about a multi-month leave — opening it up to potential challenge. Nor does the ruling offer any real guidance for employers on what length of leave is reasonable.

So what can employers do to reduce the risk of an employee or EEOC action on an “inflexible” leave law?

First, employers should focus on individual employees. The ADA requires a case-by-case assessment to determine which particular form of accommodation is reasonable for a particular employee. A blanket refusal to grant multi-month leaves is not the kind of case-by-case assessment required by the ADA. The key to reducing potential liability is an interactive, individualized, and well-documented process.


Next, learn what other employers are doing. Leave laws are increasingly complicated, especially the interaction among them. Risk managers, HR professionals and others can take advantage of the workshops, webinars, training videos and other resources on the ADA; many are available at low or even no cost.

Finally, employers should think about going beyond ADA requirements. The immediate and reasonable question is, “why wouldn’t you try to accommodate an individual with a qualified disability?”

That question is best answered with other questions:

  • Why would you want skilled, experienced employees to leave your organization?
  • Why would you want to increase ADA litigation risks for your organization?

Rather than seeing the ADA as a problem to mitigate, employers should see it as an opportunity to maximize and retain valuable talent. Many employers have made that shift in regard to workers’ compensation (WC) claims. WC costs can be so significant that some organizations successfully adopt an “above and beyond” attitude toward helping claimants stay at work or return to work. Doing so requires investment in proactive policies, processes and procedures to reduce claims. It requires work, but the return on investment can be substantial. The same applies to the ADA. That investment can pay big dividends in today’s tight — and litigious — labor market.

The 7th Circuit’s recent ADA ruling isn’t the last word on reasonable accommodations. Employers should continue to take steps that minimize liability and maximize the ability to attract good talent to compete and grow.

More from Risk & Insurance

More from Risk & Insurance

Risk Report: Marine

Crewless Ships Raise Questions

Is a remote operator legally a master? New technology confounds old terms.
By: | March 5, 2018 • 6 min read

For many developers, the accelerating development of remote-controlled and autonomous ships represents what could be the dawn of a new era. For underwriters and brokers, however, such vessels could represent the end of thousands of years of maritime law and risk management.

Rod Johnson, director of marine risk management, RSA Global Risk

While crewless vessels have yet to breach commercial service, there are active testing programs. Most brokers and underwriters expect small-scale commercial operations to be feasible in a few years, but that outlook only considers technical feasibility. How such operations will be insured remains unclear.

“I have been giving this a great deal of thought, this sits on my desk every day,” said Rod Johnson, director of marine risk management, RSA Global Risk, a major UK underwriter. Johnson sits on the loss-prevention committee of the International Union of Maritime Insurers.

“The agreed uncertainty that underpins marine insurance is falling away, but we are pretending that it isn’t. The contractual framework is being made less relevant all the time.”

Defining Autonomous Vessels

Two types of crewless vessels are being contemplated. First up is a drone with no one on board but actively controlled by a human at a remote command post on land or even on another vessel.

While some debate whether the controllers of drone aircrafts are pilots or operators, the very real question yet to be addressed is if a vessel controller is legally a “master” under maritime law.


The other type of crewless vessel would be completely autonomous, with the onboard systems making decisions about navigation, weather and operations.

Advocates tout the benefits of larger cargo capacity without crew spaces, including radically different hull designs without decks people can walk on. Doubters note a crew can fix things at sea while a ship cannot.

Rolls-Royce is one of the major proponents and designers. The company tested a remote-controlled tug in Copenhagen in June 2017.

“We think the initial early adopters will be vessels operating on fixed routes within coastal waters under the jurisdiction of flag states,” the company said.

“We expect to see the first autonomous vessel in commercial operation by the end of the decade. Further out, around 2025, we expect autonomous vessels to operate further from shore — perhaps coastal cargo ships. For ocean-going vessels to be autonomous, it will require a change in international regulations, so this will take longer.”

Once autonomous ships are a reality, “the entire current legal framework for maritime law and insurance is done,” said Johnson. “The master has not been replaced; he is just gone. Commodity ships (bulk carriers) would be most amenable to that technology. I’m not overly bothered by fully automated ships, but I am extremely bothered by heavily automated ones.”

He cited two risks specifically: hacking and fire.

“We expect to see the first autonomous vessel in commercial operation by the end of the decade. Further out, around 2025, we expect autonomous vessels to operate further from shore — perhaps coastal cargo ships. For ocean-going vessels to be autonomous, it will require a change in international regulations, so this will take longer.” — Rolls-Royce Holdings study

Andrew Kinsey, senior marine risk consultant, Allianz Global Corporate & Specialty, asked an even more existential question: “From an insurance standpoint, are we even still talking about a vessel as it is under law? Starting with the legal framework, the duty of a flag state is ‘manning of ships.’ What about the duty to render assistance? There cannot be insurance coverage of an illegal contract.”

Several sources noted that the technological development of crewless ships, while impressive, seems to be a solution in search of a problem. There is no known need in the market; no shippers, operators, owners or mariners advocate that crewless ships will solve their problems.

Kinsey takes umbrage at the suggestion that promotional material on crewless vessels cherry picks his company’s data, which found 75 percent to 90 percent of marine losses are caused by human error.


“Removing the humans from the vessels does not eliminate the human error. It just moves the human error from the helm to the coder. The reports on development by the companies with a vested interest [in crewless vessels] tend to read a lot like advertisements. The pressure for this is not coming from the end users.”

To be sure, Kinsey is a proponent of automation and technology when applied prudently, believing automation can make strides in areas of the supply chains. Much of the talk about automation is trying to bury the serious shortage of qualified crews. It also overshadows the very real potential for blockchain technology to overhaul the backend of marine insurance.

As a marine surveyor, Kinsey said he can go down to the wharf, inspect cranes, vessels and securements, and supervise loading and unloading — but he can’t inspect computer code or cyber security.

New Times, New Risks

In all fairness, insurance language has changed since the 17th century, especially as technology races ahead in the 21st.

“If you read any hull form, it’s practically Shakespearean,” said Stephen J. Harris, senior vice president of marine protection UK, Marsh. “The language is no longer fit for purpose. Our concern specifically to this topic is that the antiquated language talks about crew being on board. If they are not on board, do they still legally count as crew?”

Harris further questioned, “Under hull insurance, and provided that the ship owner has acted diligently, cover is extended to negligence of the master or crew. Does that still apply if the captain is not on board but sitting at a desk in an office?”

Andrew Kinsey, senior marine risk consultant, Allianz Global Corporate & Specialty

Several sources noted that a few international organizations, notably the Comite Maritime International and the International Maritime Organization, “have been very active in asking the legal profession around the world about their thoughts. The interpretations vary greatly. The legal complications of crewless vessels are actually more complicated than the technology.”

For example, if the operational, insurance and regulatory entities in two countries agree on the voyage of a crewless vessel across the ocean, a mishap or storm could drive the vessel into port or on shore of a third country that does not recognize those agreements.

“What worries insurers is legal uncertainty,” said Harris.

“If an operator did everything fine but a system went down, then most likely the designer would be responsible. But even if a designer explicitly accepted responsibility, what matters would be the flag state’s law in international waters and the local state’s law in territorial waters.


“We see the way ahead for this technology as local and short-sea operations. The law has to catch up with the technology, and it is showing no signs of doing so.”

Thomas M. Boudreau, head of specialty insurance, The Hartford, suggested that remote ferry operations could be the most appropriate use: “They travel fixed routes, all within one country’s waters.”

There could also be environmental and operational benefits from using battery power rather than conventional fuels.

“In terms of underwriting, the burden would shift to the manufacturer and designer of the operating systems,” Boudreau added.

It may just be, he suggested, that crewless ships are merely replacing old risks with new ones. Crews can deal with small repairs, fires or leaks at sea, but small conditions such as those can go unchecked and endanger the whole ship and cargo.

“The cyber risk is also concerning. The vessel may be safe from physical piracy, but what about hacking?” &

Gregory DL Morris is an independent business journalist based in New York with 25 years’ experience in industry, energy, finance and transportation. He can be reached at [email protected]