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HR Matters E-Tips
This Week's Tip: When FMLA Leave is Exhausted
Published by Personnel Policy Service, Inc.
"Your Policy and Compliance Experts Since 1972"
This Week's Tip: When FMLA Leave is Exhausted

Once employees have used up their 12 weeks of FMLA leave, your
obligations under the FMLA generally are over. But, you still may have
to grant additional leave to comply with other laws, including disability,
pregnancy discrimination, and state law protections.
This Week's Tip: When FMLA Leave is Exhausted

Do you know what to do when employees on medical leave have used
up their 12-week FMLA entitlement? Can you terminate them when the
FMLA leave expires if they cannot return because of a continuing
medical condition? Or, do you have to extend the leave? The answer
(as often is the case with the FMLA) is "it depends."

Under the FMLA, an eligible employee is entitled to up to 12 workweeks
of leave within a 12-month period for certain family and medical reasons,
including the employee's own serious health condition. At the end of the
12 weeks, the employee is no longer protected by the FMLA. (Of
course, this statement assumes that you properly placed the employee
on FMLA leave by providing the required written notice that triggers the
running of the FMLA 12-week period.)

Therefore, if employees do not return to work, you may terminate them
without violating the FMLA, provided the termination is consistent with
the treatment of similarly-situated employees who have taken FMLA or
other extended leave.

However, depending on the nature of the employee's medical condition,
you may have an obligation to extend the leave because of your own
policies or because of other laws such as the Americans with Disabilities
Act (ADA), the Pregnancy Discrimination Act (PDA), or state leave or
workers' compensation laws.

ADA Obligations

If the employee's medical condition qualifies as a disability under the
ADA, you may have to allow additional leave beyond the 12 weeks
required by the FMLA, if the extension would constitute a reasonable

Remember, though, not all serious health conditions that trigger FMLA
coverage meet the disability definition. Under the ADA, a disability is
defined as a mental or physical impairment that substantially limits a
major life activity, and this definition has been interpreted to cover mainly
longer term, chronic medical conditions.

A reasonable accommodation is one that allows the employee to perform
the essential functions of the job without imposing an undue hardship on
the employer. The ADA does not place any specific time limit on the
amount of leave a disabled employee can take. As a general rule,
however, the leave cannot be indefinite.
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FMLA checklist and 10 Frequently-Asked Questions about the FMLA

In addition, the ADA has been interpreted to allow employers to
implement uniformly enforced policies providing for the termination of
employees who exceed a certain amount of leave. Thus, in Gantt v.
Wilson Sporting Goods, 143 F.3d 1042 (6th Cir. 1998), the court
determined that an employer's uniformly applied policy of terminating
employees who take more than a year of leave did not violate the ADA.

However, if you set a maximum leave period, you still should consider
any disabled employee's request for a brief extension of the leave
beyond the stated maximum. Such extra time may be a reasonable
accommodation if the employee is expected to be able to return to work
following the extension.

So, for example, in Garcia-Ayala v. Lederle Parenterals Inc., 212 F.3d
638 (1st Cir. 2000), the court found that the employer violated the ADA
when it terminated an employee because she requested additional leave
beyond the one-year limit allowed under the company's leave policy.
The employee requested only an additional two months of leave and the
employer did not show that the additional leave requested would create a

Extended Pregnancy Leaves

If your employee was on FMLA leave because of a serious health
condition caused by pregnancy, she also may be covered by the PDA.
The PDA does not require employers to provide a specific amount of
leave to pregnant employees. Rather, the law requires that you treat
women affected by pregnancy, childbirth, or related medical conditions
the same as employees who are on leave for other temporary medical

Therefore, you should not terminate a woman on a pregnancy leave of
absence who does not immediately return to work if you maintain a
policy of leniency towards other employees on temporary medical
leaves. For example, in Maddox v. Grandview Care Center, 780 F.2d
987 (11th Cir. 1986), the Eleventh Circuit Court of Appeals found that the
employer's policy of limiting maternity leave to three months violated the
PDA, since it allowed indefinite leaves for other illnesses. Thus, if you
normally extend medical leaves for other temporary medical conditions,
you should do the same for any pregnancy-related leaves.

State Law Coverage

If the employee's medical leave is caused by a work-related illness or
injury, state workers' compensation laws may provide additional rights.
Although most states do not require a specific amount of workers'
compensation leave, a few (such as West Virginia and Oregon) do
require reinstatement at the end of the leave.

In addition, some state family and medical leave laws provide for more
than the FMLA's 12 weeks of job-protected leave. For example,
Connecticut requires employers to give up to 16 weeks of leave over a
24-month period for various family and medical leaves. And, pregnant
employees with medical complications in California can extend their
leaves for up to 28 weeks (almost seven months) by combining their 12
weeks of FMLA leave with the 16 weeks provided by a state pregnancy
disability leave law. Therefore, you should check state law requirements
as well.

So, completion of the 12-week FMLA entitlement period may not be the
end of all your legal obligations. Make sure your employees don't have
additional rights before you initiate termination action at the end of a
FMLA leave.

Subscribers to the Personnel Policy Manual and HR Policy Answers on
CD can find more information on termination after FMLA leave in Leaves
of Absence, Chapter 703, note 44.

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and you'd like to use it free for 30 days to see if you like it, go to:

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Please contact Robin Thomas, Managing Editor of Personnel Policy
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