The Family and Medical Leave Act (FMLA) requires covered employers to provide up to twelve weeks of unpaid leave to qualified employees who have a serious health condition. As you might imagine, if the condition is sufficiently serious, twelve weeks may not be enough time to recover and return to work. At the end of FMLA leave, what should you do? Many employers make the mistake of summarily terminating employment when FMLA leave is exhausted if the employee fails to return to work.

Summary termination in this situation is a mistake because the employer must consider its obligations under The Americans With Disabilities Act (ADA). ADA requires employers to provide reasonable accommodations to qualified individuals with disabilities unless it would create an undue hardship to do so. Continued leave may be a reasonable accommodation. The Equal Employment Opportunity Commission (EEOC) is more likely to become deeply interested in a post-FMLA termination if the employer has no record of having conducted an undue hardship analysis on granting extended leave as an accommodation.

ADA requires an interactive process. Consequently, the first step is to stay in touch with the employee during FMLA leave: EEOC is more likely to become involved where the employer is responsible for a breakdown in communication. While the employee is on leave, seek update information regarding the employee’s ability, intention, and schedule to return to work. Will the employee need any accommodation to return to work? Particularly if extended leave is requested, is there an accommodation that will speed the employee’s return to work?

ADA does not require accommodations that place an undue burden on the employer. Step two is to conduct a business analysis on the feasibility of extended leave. You should begin this analysis as soon as it is apparent that leave beyond FMLA may be needed. The analysis must focus on the viability of granting extended leave as a mechanism for ultimately returning the employee to work. The EEOC is more likely to pursue action if it senses the analysis began with the purpose of justifying termination the moment FMLA protection ends. Review past and present experiences with leave taken by the employee and others in the same position. Document how the prior and current leave episodes have burdened your organization. Specifically look for lost productivity, poor customer care, reduced quality or consistency in work product, and burdens on co-workers and managers including poor morale. Some questions you might consider include (1) are there other qualified employees in the organization; (2) if there are other qualified employees, can they take on additional tasks or work additional hours; (3) can you use temporary employees; and (4) is there a factor such as seasonal change or market growth that will increase or decrease overall workload?

When you have all the information in front of you, assess whether the burden of additional leave is manageable. By taking an objective and documented approach to hardship analysis, employers can substantially reduce the risks of an EEOC reasonable accommodation claim. However, it is important to understand that the “undue burden” bar is set high. Consult counsel before denying extended leave.

Please do not hesitate to contact the Firm with any questions you may have about the effect of laws and regulations on your business or its operations.