Oftentimes employers are faced with the situation where employees have been granted Family and Medical Leave Act (FMLA) leave to treat a serious health condition, which poses long-term restrictions and limitations. 12 weeks pass and the employee fails to return to work, therefore the employer terminates the employee under a “no-fault” attendance policy. Is the employer correct and free to terminate after granting the full 12-weeks allowed by FMLA? Maybe not, blanket termination policies can land employers in really hot water.
By quickly terminating an employee who has exhausted his or her FMLA leave, the employer could be violating the American’s with Disabilities Act (ADA) by terminating the employee, if the individual’s serious health condition is also considered a disability under the ADA. If both laws apply, the employer may be required to provide additional leave, above and beyond FMLA leave, as a reasonable accommodation.
The Equal Employment Opportunity Commission (EEOC) views additional post FMLA leave as a reasonable accommodation, and actively targets companies with inflexible absence termination policies that fail to acknowledge overlapping obligations. Companies may be able to avoid liability by adjusting their policy to allow additional leave if:
- The employee is disabled under FMLA
- The employee can provide a general window of time for their ultimate return to work
- There is no “undue hardship” to the company
Even if the employer does have an appropriate absence termination policy, the company should look to that ADA before deciding to terminate or administer other employment action(s) regarding employees with disabilities, which may have accommodation rights under the ADA. It may be in the employer’s best interest to agree to provide additional leave if an employee covered by FMLA also has and ADA covered disability for which such leave may be a reasonable accommodation.
7 Tips for Coordinating FMLA and ADA Leave
- Evaluate the leave situation before quickly replacing an employee on FMLA or ADA leave
- Assess whether and employee is covered by both FMLA and ADA to plan for long-term absences
- Ensure HR representative responsible for FMLA coordinates efforts with ADA agent at the company
- Communicate with the employees on leave and document communications
- Educate HR personnel and managers regarding compliance with FMLA and ADA
- Review and adjust polices as appropriate
- Consider state laws
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