Large employers are often faced with the scenario where a disabled employee is finishing her leave under the Family and Medical Leave Act (FMLA) in the next week, but the doctor says she needs more leave. In this situation, without regard to what your policy may say, do not pull the termination trigger just yet.
Whether an employer must give additional leave to an employee who finished her 12-week FMLA leave entitlement will depend on the particular circumstances involved. The employer should investigate whether the employee’s medical condition renders her “disabled” as defined by the federal Americans with Disabilities Act (ADA) or parallel state or local law. If the employee is deemed disabled under any of these statutes, then she most likely is entitled to a reasonable accommodation from her employer. One type of reasonable accommodation is leave time to get better and return to work. The key is whether there is a foreseeable date to return, as opposed to a request for indefinite leave, and whether additional leave would pose an undue hardship on the company.
For this reason, if the employee finished her leave under the FMLA but remains disabled, she might be entitled to additional leave time beyond the 12 weeks of FMLA leave under the disability discrimination laws. If she provides a doctor’s note saying she needs two more weeks of leave, that is most usually going to be found to be a reasonable accommodation and should be provided. Another six months? That’s another story – and likely a scenario that should be discussed with your employment counsel.
Consulting with counsel in these situations can make sure that the company complies with its obligations under the ADA, and any relevant state or local laws.
