Additional Medical Leave After the FMLA Period Expires

The Family and Medical Leave Act (FMLA) allows most employees of medium and large companies to take twelve weeks of medical leave.  But what happens when the twelve weeks runs out?  Many companies believe that providing FMLA leave satisfies their legal obligations, and that an employee who does not return after twelve weeks and one day can be fired.  It is not always that simple.  In some cases, an employee may request additional medical leave even after the FMLA period expires, and a strict policy of firing people at the expiration of the FMLA period violates the law.

Companies commonly make this mistake because they only think about the FMLA. Section 102 of the FMLA states that “an eligible employee shall be entitled to a total of 12 workweeks of leave during any 12-month period.”  Once those twelve weeks are up, an employee has no additional rights under the FMLA.  But the FMLA is not the only federal law governing employment.

The Americans with Disabilities Act (ADA), requires employers to offer “reasonable accommodations” for employees who suffer from a “substantial impairment.” Employees returning from FMLA leave may still be suffering from lingering effects from their medical condition, and they may qualify as disabled under the ADA.  The company must offer a reasonable accommodation which, under some circumstances, may include additional leave.

I wish to be clear that the ADA does not grant employees the right to an additional open-ended continuing leave period even after FMLA leave is exhausted.  Courts have unanimously rejected requests for indefinite leave under the ADA — an employee cannot require a company to hold his job open for as long as it takes for him to recover.  However, an employee who returns from FMLA leave may be eligible for occasional or sporadic leave, if that additional leave allows him to fulfill his the essential functions of his job.  For example, an employee may request every Thursday afternoon off to attend ongoing medical appointments.  In many cases, this will be a reasonable request that an employer must accommodate.

At the very least, the ADA regulations require employers to engage in an “interactive process” regarding a requested accommodation.  At the very least, this requires employers to ask the worker what accommodations he needs, analyze, in good faith, whether the company can accommodate that request, and (if not) suggest other potential accommodations which might help the employee fulfill his job functions.  The ADA does not require employers to always grant additional medical leave, but it does require them to seriously consider the possibility.  This is why it’s a bad idea to fire employees as soon as the twelve weeks of FMLA leave run out — this one-size-fits-all policy does not allow for the interactive process, and does not include an individualized determination of the potential reasonable accommodations for this specific employee.

While an employee is not always entitled to additional medical leave after the FMLA period expires, it is nonetheless an option that both sides should consider.  If you have any questions about your rights under the ADA, the FMLA, or other federal employment law, call New Orleans employment lawyer Charles Stiegler at (504) 267-0777, or email me today.