May an employer terminate an employee who exhausts Family and Medical Leave Act (FMLA) leave and does not return to work?

Author: Melissa Burdorf, XpertHR Legal Editor

No. After an employee uses his or her 12-week entitlement to FMLA leave, an employer should check to see whether a state family and medical leave law, a state paid sick leave law or the employer's own policy provides greater rights to leave than the FMLA. If all forms of required leave have been exhausted, the employer should consider if additional medical leave should be provided as a reasonable accommodation under the Americans with Disabilities Act (ADA) or state disability law.

To make this determination, an employer should consider any information that is known about the employee's health condition, including information from workers' compensation proceedings or the employee's prior leave requests. There is no requirement that an employer speculate as to whether the employee's leave request or failure to return from leave reflects a desire for an ADA accommodation. However, if an employee has a visibly obvious impairment or the employee's medical records make it clear that the employee is disabled, an employer should proceed as if the employee is requesting a leave as an accommodation under the ADA. An employer should ask the employee what his or her medical condition is, how it affects his or her ability to perform the essential functions of the job, why leave is necessary and how much leave is needed. If the employee cannot provide satisfactory information, the employer should request that information from the employee's health care provider. Once the employer has this information, the employer should decide if the employee's request for additional leave is reasonable.