Employers reach out to us frequently on this topic – because there is no cut and dry answer!
Once an employee has exhausted all 12 weeks of FMLA leave for the employee’s serious health condition in a one-year period, you may think that the employee must automatically come back to work at that point. In some cases, yes! Their doctor may clear the employee to return to work. In other cases, the employee may need continued medical care that prevents them from being able to return to work.
If you have at least 15 employees, you are covered under the Americans with Disabilities Act. Additional unpaid leave beyond FMLA can and is often time considered a reasonable accommodation under the ADA and state law.
Concerned about whether your current policies are compliant with the FMLA and the ADA? Our FMLA and ADA Compliance Audit and other fixed fee services are useful tools to ensure your policies are up to snuff.
You will have to decide if you have enough information to determine whether the employee has a disability that is protected under the ADA and state law or whether you need further medical documentation. The definition of disability is an impairment that substantially limits a major life activity.
Next you will need to engage in the interactive process. In this process you will need documentation from the employee’s provider stating what her condition, limitations, and any accommodations. Leave is just one option for a reasonable accommodation – and you can ask the employee’s provider if other accommodations would work just as well.
What if You Can’t Accommodate More Leave?
If the employee’s doctor indicates more leave is the only option, you are not obligated to provide additional leave if it will be an undue hardship on your operations. Undue hardship means the accommodation would cause significant difficulty or expense to the employer.
The EEOC has provided some factors to determine whether leave specifically would cause undue hardship:
- the length of the leave,
- the frequency of leave, if intermittent leave,
- predictability,
- the impact of the employee’s absence on coworkers,
- whether job duties can be performed in an appropriate and timely manner (i.e., employee with certain skills under a specific contract is on leave and no one could take their spot), and/or
- impact on the employer’s operations and its ability to serve customers/clients appropriately and timely.
Each individual situation must be considered on a case-by-case basis. You will need to determine whether extended leave is feasible for the employee’s position based on these six factors – and the extent of leave that you are able to grant before it becomes an undue hardship.
Questions about particular employee situations? We are here to help.