When FMLA leave is used up but employee is unable to come back to work

Mitchell

Our hourly employee has used up her 12 weeks of FMLA. Her doctor sent us a certificate yesterday stating that she would be unable to return to work for at least six more months due to the seriousness of her illness. Are we still obligated to hold a position open for her? Are we obligated to continue health benefits and if so for how long? When does our legal opbligation to her end?

PAhr

Under FMLA you only need to hold her position for 12 weeks but if your company has past practices of allowing employees more time off you might be caught in a tough situation. If there are no past practices of allowing more time off, write her a letter explaining that the employee is being let go as FMLA has been used up (I hope you explained to her when she first applied that FMLA is only twelve weeks and the consequences if more time off would be required) and state that when she has recovered she can re-apply.

sandra_d

FMLA does allow an employer to terminate if an employee cannot come back to work after their full entitlement has been taken. And, it seems that most likely you would be ok to terminate. However, I've learned in various seminars that an extended leave of absence, in some situations, may be considered a reasonable accommodation under the ADA. Only you can answer whether extending her leave under a "personal leave" type situation would be reasonable for your company to offer or not. If you do opt to extend her leave, the employee would not have any right to continuation of her insurance as an active employee such as when on FMLA. You would (I assume) need to offer her continuation of her insurance through COBRA, however.

Don D

I agree with Sandra but do feel that under ADA a SIX MONTH inability to work would not under any circumstance be considered reasonable as an accommodation, if the employer felt it was not.

Wendywsc

I recently read an article in one of the Employment Law letter I receive that in a recent court ruling(to the best of my recollection) under the ADA guidelines, NOT working is not considered a "reasonable" accommodation. I'm not able to find that exact article, but it seemed to be fairly clear on this point. . . and I use the term "clear" loosely, as we all know that when it comes to the law even Twinkies can be a justifiable defense!

Don D

I think the 'conventional wisdom' surrounding this scenario is that once FMLA is no longer an option and an ADA accommodation two-way interraction has been had with the ee/er, if the practitioner suggest something reasonable like an additional week of leave due to a disability....the safest thing to do is consider granting it. However, unreasonable is initially defined by the employer and that is his to determine (and defend). Six months is under no circumstances reasonable. A person who is flat unable to work does not meet the definition of "A qualified individual with a disability".

LindaS

I agree with Don six months would probably not be considered "reasonable" unless, of course, you have done this with other employees.