What do you do when an employee wants leave for a medical condition, but has already exhausted or is not eligible for leave under the Family and Medical Leave Act? Tread carefully.
Maybe you’re not a covered employer under the FMLA. Maybe the employee is not eligible for FMLA leave, or has already exhausted all leave available under the FMLA. Or maybe you have a policy that says the maximum amount of leave any employee can take is 12 weeks, and the employee has already exceeded that limit.
Before terminating an employee in such a circumstance, employers with 15 or more employees must analyze the request further under the Americans with Disabilities Act. Although employers are allowed to have leave policies that establish a maximum amount of leave, they may have to make exceptions for employees who require more leave because of a disability.
The EEOC takes the position that “no-fault” maximum leave policies (under which employees are automatically terminated after they have been on leave for a certain amount of time) are unlawful. That is, an employer may not automatically terminate an employee after a certain amount of leave has been exhausted. The EEOC states that the employer must provide additional leave time under the ADA after FMLA leave is exhausted, unless: (1) granting the leave would result in undue hardship, or (2) there is another effective accommodation that would enable the employee to perform the essential functions of his or her position. Moreover, according to the EEOC, in evaluating what constitutes an undue hardship, the employer must consider whether it has a vacant, equivalent position for which the employee is qualified and to which the employee can be reassigned to continue his/her leave for a specific period of time and then, at the conclusion of the leave, can be returned to the new position. Continue Reading