What Should Employers Do When Workers Exhaust FMLA Leave?

What Should Employers Do When Workers Exhaust FMLA Leave?

When employees exhaust their leave under the Family and Medical Leave Act (FMLA), they may want to return to work or take additional leave.  Here are some tips to help employers manage the return-to-work process and decide, if applicable, if providing more leave is appropriate.

Eligible employees can take up to 12 weeks of unpaid leave under the FMLA, to, among other things, care for themselves or a sick relative, and employers must reinstate workers to the same or an equivalent job when they return to work.

Employers should have a well-written policy regarding leaves of absence, and require employees to provide updates on their return-to-work status.

Return-to-Work Policy

An employer may but is not required to have a return-to-work certification requirement as part of its FMLA leave policy.  Under the policy, employers may require workers to provide certification from their health care provider stating that they are able to resume work.  Employers may also request the certification to ensure they are complying with doctor-ordered work restrictions and to determine if the employee needs a reasonable accommodation to perform his or her essential job duties.

An employer should only seek certification regarding the health condition that led to the employee’s FMLA leave.  Additionally, employers must recognize that a return-to-work certification may be legitimate even if it does not come from a medical doctor.  Depending on the employee’s reason for taking FMLA leave, nurse practitioners, physician assistants and clinical psychologists may also release an employee for work.

Reasonable Accommodations

Employers may have an obligation to provide a reasonable accommodation even after an employee’s FMLA leave ends.  Some employers make the mistake of requiring an employee to be cleared to return to “full duty”, which could create a potential problem under the Americans with Disabilities Act (ADA) or a similar state law.

An employer must take restrictions into consideration if the ADA applies, communicate with the employee and decide if it can provide a reasonable accommodation so the employee can return to work.  In some situations, the employer may also have an obligation under the ADA to grant additional unpaid leave as a reasonable accommodation.  There is no set time period for additional leave under the ADA, but what is reasonable may depend on the job, employer size and other conditions at the worksite.  If a worker needs extended leave under the ADA, the employer may request medical documentation if it isn’t obvious that the condition is an ADA qualifying disability.

If the employer requests a return-to-work certification, it is important for the employer to apply the policy uniformly and provide notice of the policy to employees.  The employer should require all similarly situated employees to present certification.  An employer that doesn’t apply its policy consistently could be vulnerable to discrimination or harassment claims.

Additional Leave Laws

FMLA leave can run concurrently with other leave laws.  Employers should also note that a state or local law or the terms of a collective bargaining agreement may govern an employee’s return to work.

Before firing an employee who doesn’t return to work or submit the requested paperwork, the employer should consult with legal counsel, since the appropriate steps may vary depending on the employee’s specific situation.

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