APPROPRIATE STEPS WHEN EMPLOYEES HAVE EXHAUSTED FMLA LEAVE
The Family and Medical Leave Act (FMLA) provides eligible employees with up to 12 workweeks of unpaid leave in a 12 month period for certain family and medical reasons. Specifically, for the birth and care of a child within one year of birth; placement of a child for adopted or foster care within one year of placement; to care for the employee’s spouse, child, or parent who has a serious health condition; a serious health condition for the employee that makes him/her unable to perform the essential functions of the job; and certain qualifying exigencies arising out of military service.
What happens when an employee exhausts his/her available FMLA leave? Some employees will be ready to return to work at the end of their 12 workweeks, while others may require additional leave. It’s important to know how to handle those two scenarios to ensure you are in compliance with not only FMLA, but other relevant state and federal law.
First and foremost, it is important that an employer have a policy on leaves of absence in place before any of these issues arise. The policy will help employers be consistent in the application of their leave requirements and provide employees with guidelines to follow.
Employee Wants to Return to Work
If an employee has been out on FMLA leave for their own serious health condition and are ready to return to work, employers may want to request a fitness-for-duty certification as a condition of coming back to work. A fitness for duty certification is a certification from the employee’s health care provider stating that the employee is able to return to work.
If an employer is going to require a fitness-for-duty certification to return to work following FMLA leave, they must make sure the requirements is uniformly-applied to all similarly-situated employees. Having a well-written policy in place is a good way to ensure that happens.
Employers can only request certification as to the health condition that lead to the employee’s FMLA leave. This is not the opportunity for a fishing expedition. It’s also important to realize that certifications from nurse practitioners, physician assistants, and clinical psychologists are going to be sufficient depending on the reason for taking leave. There is no requirement that the certification come from a medical doctor.
Employee Wants to Return to Work – With Restrictions
Often, despite an employee’s desire to come back to work in the same capacity they left, the medical provider will release him/her to return to work, but with some restrictions. These restrictions may be short term or permanent. Don’t discount this fitness-for-duty release because it has restrictions.
There is nothing in the FMLA regulations that requires an employee to be fully released in order to be returned to work after FMLA leave has been exhausted. Some employees make this mistake and get themselves into hot water.
Employers may have an obligation to provide a reasonable accommodation for the employee under the Americans with Disabilities Act (ADA). Just because FMLA has been exhausted does not mean an employer is in the clear. Employers must take any restrictions into consideration to determine if an accommodation can be made to allow the employee to return to work. Do not just assume because there has not been a full release and the employee has exhausted his/her FMLA allotment that you can cut ties without any consequences. Engage in the interactive process – have a discussion with the employee about the restrictions and what accommodations can be made before making any decisions.
Employee Needs More Time Off
What if the employee needs additional time off following his/her 12 workweeks of FMLA? Again, employers should not rush to cut ties simply because FMLA has been exhausted. Employers, again, need to consider whether the reason for the additional time off may be subject to the ADA. Not all employees who qualify for FMLA leave will qualify for an ADA accommodation.
The ADA recognizes leave as an accommodation. Therefore, if an employee who has taken FMLA leave for his/her own serious health condition and needs additional time off due to that serious health condition may be entitled to additional leave as an accommodation under the ADA. There is no set period of time in which leave as an accommodation is deemed reasonable. That is going to be a case by case consideration.
The same analysis an employer would use to consider restrictions in an employee’s fitness-for-duty certification apply here.
Communication With the Employee is Key
Whether we are talking about FMLA, ADA, or some other state or federal law that provides employee protections, communicating with employees is important. Letting the employee know what leave is available to them under company policy or law. The employee’s leave status, including how much leave he/she has used or has remaining. If there are requirements to keep the employer informed of his/her intent to return to work and when.
Employers should not rely on the fact that the employee has returned to work or hasn’t returned the appropriate paperwork as a justification for taking an adverse employment action, including termination. If communication breaks down, it shouldn’t be because the employer failed keep lines of communication open or worse, deliberately avoided communication with the employee.
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