Human Resource Blog

Exhausted FMLA

We have an employee who has exhausted her 12 weeks of FMLA, employee returned the Monday after 12 weeks, she had previously used all her accrued vacation and sick time before going out on FMLA. Now that she is back to work she states that she has continuing doctor visits. My question is do we have to accomodate her visits? Can we ask that the visits be as late as possible in the day since the employee works 9am to 6pm, and how often will these appointments take place.

If the employees condition is classified as a disability by the EEOC, then you must make a reasonable accommodation for it. Not every serious health condition under FMLA is a disability under ADA, the Americans with Disabilities Act. For example, pregnancy or a broken leg are serious health conditions — but they are not permanent disabilities.

However, the EEOC expanded the definition of disability under ADA in early 2009. Many conditions, including cancer (even in remission),  diabetes, arthritis, etc. are now classified as permanent disabilities — even if the employee functions normally most of the time.

If you have doubts about whether the employees condition is a disability, contact the EEOC at www.eeoc.gov.

If the employees condition is not a disability, she can be disciplined or terminated for missing more work time.

If the employees condition is a disability, giving her time off for doctors visits is probably a reasonable accommodation. The time off can be unpaid, even if this employee is exempt. You can, indeed request that she schedule the appointments so that they interfere with your business as little as possible (assuming that her doctor is available at that time.)