by Doug Taylor, Shareholder, Bean, Kinney &
following scenario. You are an employer to which the FMLA and ADA apply. One of
your employees has been on unpaid FMLA leave due to medical conditions that have
required ongoing treatment by a team of doctors. The employee has exhausted all
of his sick leave and paid time off and is nearing the conclusion of the twelve
weeks of unpaid FMLA leave to which he is entitled. You prepare a letter
informing him that he must report back to work on the day after his leave has
run out. Just before that date, however, the employee provides you with a
doctor’s note stating that the employee requires additional medical testing as
a part of his treatment, is unable to return to work at the present, and
without the additional testing, it is unclear when the employee will be able to
return to his job.
Q: Can you
terminate the employee because he is unable to return at the end of his twelve
weeks of FMLA leave?
A: Yes, but
with some important caveats. The FMLA entitles eligible employees to take up to
12 weeks of unpaid personal medical or family care leaves of absence during any
12-month period. Among the events that give rise to FMLA leave entitlement is a
“serious health condition” that prevents the employee from performing an
essential function of his job. Under the FMLA, an employer is required to
reinstate the employee to the same job or a substantially equivalent one at the
conclusion of the employee’s FMLA leave, but not if the employee is unable to
perform one or more of the essential functions of the job at the time that the
employee’s FMLA leave runs out. Under the FMLA, the answer seems clear. The
employer would be within its rights to terminate the employee, if desired,
because the employee has exhausted all available forms of leave, including FMLA
leave, but is unable to return to work. Now to the caveats.
Q: Does the
outcome change if the employee has made it known that he is unable to return to
work because of a “disability” when his FMLA leave ends?
A: Possibly. An
employee who requests FMLA time off due to a medical or disability-related
issue may simultaneously have additional rights under the Americans with
Disabilities Act (“ADA”). The ADA
requires that a covered employer make “reasonable accommodations” to the known
physical or mental limitations of an otherwise qualified individual with a
disability, unless the employer can demonstrate that the accommodation would
pose an undue hardship on the employer’s business. Under the ADA, it is
discriminatory for an employer to deny a request for a reasonable accommodation
to a qualified employee with a disability. It is well-settled that extended
unpaid leave can be a
reasonable accommodation under the ADA. Questions are necessarily left open for
discussion, however, as to “reasonableness” in each particular employment
Q: When does a request for
unpaid leave become too attenuated to be reasonable under the ADA?
leave requests have been deemed presumptively unreasonable. Without an expected
end date, an employer is unable to determine whether the temporary exemption is
a reasonable one. As to the question of what leave duration might be
reasonable, the outcome depends to a large degree on the facts of the
particular employment situation. A six month leave request was too lengthy to
be reasonable, for example, in the view of one reviewing court.
Q: Under what circumstances
might the employee’s request for unpaid leave become so burdensome on the
employer that it becomes unreasonable?
A: Some factors important to the determination of whether a request
creates an unreasonable burden on the employer are:
(1) the nature and cost of the accommodation;
(2) the overall size and financial resources of the
(3) the type of business operations, structure, and
geographic separateness of the employer; and
(4) the extent to which the accommodation could adversely
impact the abilities of other employees to perform their work and the overall
impact on the employer’s ability to conduct its business.
The prudent employer should consider these factors before
denying an employee’s request for extended leave as a reasonable accommodation.