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May15

ADA accomodation after FMLA has expired

Here is our scenario. We granted an employee FMLA approved leave for 12 weeks after a very serious car accident on his own time off. His 12 weeks have just expired. The employee has a follow up appointment with his Doctor in one month, to determine whether he will be allowed to return to full un-restricted duty. Would it be in the best interest of the employee and us as the employer, to grant him an extension of FMLA as a reasonable accomodation under ADA? This would allow him to continue as an active employee, instead of being terminated. As we understand it, he would no longer have job protection after the 12 weeks.

You are correct that normally an employee no longer has job protection after exhausting his or her 12 weeks of FMLA. Usually, an employee who does not return to work at that time, can be terminated.

We are not convinced that ADA applies in this case. The Americans with Disabilities Act applies to employees with a permanent condition that limits their activities. For example, arthritis or asthma would be considered disabilities — they are never going to completely go away. However, a broken leg would not be a disability. At some point in time, the employee is expected to make a full recovery from the broken leg.

It sounds like you expect this employee to make a full recovery. In that case, a reasonable accommodation under ADA does not really apply.

If he were able to return to work now, but could not perform some duties, then he might be covered under ADA — especially if the impairment were permanent.

Some companies offer employees extended unpaid leave, in addition to FMLA. However, be aware that you are setting a precedent. If you offer this employee extended leave, you must offer other employees the same benefit. Suppose next year you have a pregnant employee who is on bed rest for 12 weeks before the birth of her daughter. She is also unable to work for 4 weeks after the birth. You would be legally obligated to offer that employee the same benefits — including being returned to her job — that you are offering this employee.

If you have terminated employees who exceeded their FMLA leave in the past, they might very well have a case for illegal discrimination, if you offer this employee an extended leave of absence.

Many employers would terminate this employee, and rehire him when/if he is able to work in a month, rather than establish a company-wide policy that employees are entitled to 16 weeks of unpaid leave — 12 weeks of FMLA, plus another 4 weeks or so.

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This entry was posted on Friday, May 15th, 2009 at 1:46 pm and is filed under
Workplace Management.
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4 Responses to “ADA accomodation after FMLA has expired”

  1. tommy Says:

    Just wanted to say I really liked the post. You have really put a lot of energy into your posts and it is just awesome!

  2. Caitlin Says:

    Check back often, tommy! We post 5 days per week!~ Caitlin

  3. acruz Says:

    i am terminated after 12 weeks of fmla expired, but the i have another co-employee that have taken leave for almost 6 months and did not terminated her. is it right i feel that i have been discriminated.

  4. Caitlin Says:

    Hi acruz! This may be illegal discrimination if you both have permanent disabilities, and if you have requested additional time off as a reasonable accommodation. HTH, and thanks for reading the blogs!~Caitlin

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