While the Family and Medical Leave Act (FMLA) gives workers the right to long blocks of leave and short, unscheduled “intermittent” leave, it doesn’t give them unfettered ability to take random days off or arrive late without a good excuse.
Once the 12-week FMLA window expires, some employees seem to feel that the Americans with Disabilities Act (ADA) provides them with open-ended leave. As a result, employees sometimes take advantage of the FMLA and the ADA, and employers are afraid to take action for fear of triggering some type of disability discrimination claim.
Disability leave abuse typically comes in three forms:
- Failure to provide appropriate FMLA medical certification
- Failure to follow the terms of the FMLA medical certification
- Failure to engage in the ADA interactive process
Failure to Provide Appropriate FMLA Medical Certification
Discipline may be appropriate when the worker clearly isn’t complying with the FMLA’s requirements – for example, when an employee verbally notifies the employer of the need to take time off under the FMLA, fails to provide medical certification to justify the leave, and then starts taking time off. Some workers continue to take time off while promising to provide certification “soon.”
In these cases, the employer is well within its rights to expect an employee to comply with the law and should inform the employee that he/she needs to complete the appropriate FMLA medical certification.
Failure to Follow the Terms of the Medical Certification
Employees sometimes exceed the terms of their FMLA certifications, promising to have their medical providers amend the current terms to reflect the “new realities” of their situation.
In such circumstances, the company should inform the employee that it expects him/her to comply with the law by either returning to work, or by immediately providing the proper and necessary paperwork to substantiate his/her need for further leave.
Failure to Engage in the ADA Interactive Process
Employees sometimes refuse to engage in the ADA interactive practice, which means discussing with the employer if there’s a reasonable accommodation which will allow the employee to perform the essential functions of his/her job. In such circumstances, the employer has the right to notify the employee in writing of its expectations, and his/her failure to comply with those expectations. The employer’s letter should point out the areas where the person refused to cooperate and/or to adhere to company policy and/or is violating the company’s instructions.
The bottom line is, the ADA doesn’t necessarily require an indefinite leave beyond the FMLA’s 12-week limit, nor should an employer necessarily accommodate one. If an employee is requesting further leave after the conclusion of his/her FMLA leave, the employer should contact legal counsel to discuss the situation and obtain legal advice as to its legal responsibilities.