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When 12 Weeks of Medical Leave Are Not Enough

by | Feb 10, 2015

When 12 Weeks of Medical Leave Are Not Enough

Some employers assume that if an employee with a serious health condition cannot return to work immediately following 12 weeks of FMLA leave, the employee can be terminated. This is a dangerous assumption to make. Even if a worker’s FMLA leave entitlement has been exhausted, an employer may still owe the employee additional time off as a reasonable accommodation under the Americans with Disabilities Act (“ADA”).


When workers are ill or injured, two complicated federal laws may come into play: the FMLA and the ADA.1 The FMLA, in part, allows eligible employees to take up to 12 weeks of unpaid leave for a serious health condition that renders the worker unable to perform the essential functions of their position. The ADA makes it unlawful to discriminate in employment against a qualified individual with a disability, which may include providing an indeterminate amount of leave as a reasonable accommodation. As you may well know, there are many instances where a serious health condition under the FMLA also qualifies as an ADA disability—thereby entitling the employee to the protections of both laws.

Leave as a Reasonable Accommodation

Under the ADA, an employer must provide a reasonable accommodation to a qualified employee unless the employer can show that the accommodation would impose an undue hardship (i.e. a significant difficulty or expense) on its business operations. The law is clear that a leave of absence can be a form of reasonable accommodation.

The ADA requires employers and employees to engage in a fact-specific, interactive process to determine the reasonableness of an accommodation and if it would impose an undue hardship. In determining if an employee’s leave of absence imposes an undue hardship, employers should examine whether, and to what extent, the leave will or has had the following effects on their business:

  • Productivity losses
  • Lost sales;
  • Increased payroll costs;
  • Reduced product quality and customer service;
  • Heightened customer dissatisfaction;
  • Overburdening of coworkers or management;
  • Unmet goals;
  • Delayed projects; and
  • Any other measureable effect.

Additionally, the employer’s size, financial condition, and type of business all play a role in determining the existence of an undue hardship.

Assuming an employee’s serious health condition constitutes an ADA disability, by keeping the above factors in mind an employer should be in a good position to determine how much, if any, additional time off the employee may be entitled to once their FMLA leave has been exhausted.

Leave Allotments under the ADA are not an Exact Science

There is no firm rule as to how much, if any, additional leave employers must give to an employee with a disability who has used up their FMLA leave allotment. Each situation must be examined on its own merits. It is highly probable that additional leave will have to be granted, but only after scrutinizing the above factors, likely in conjunction with an employment law attorney, can a prudent decision be made.

1 State leave laws and company policies may also apply but that is a subject for another article.

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