Often a request for continued and prolonged leave can pose a serious concern, especially when dealing with an employee with a troubled work history. Frequently, employers believe they are within their rights to terminate an employee who has used all of her statutory or company-provided leave time. However, decision making in this area is complicated by the intersection of the Family Medical Leave Act (FMLA), the Americans with Disabilities Act (ADA) and state workers’ compensation laws, in addition to recent Equal Employment Opportunity Commission (EEOC) enforcement activity.

Under the FMLA, problem situations frequently arise not when an employee requests leave, but when an employee attempts to return from leave with the same restrictions. When a covered employee returns from FMLA leave, the employer must restore the employee to the same position he previously held or to an equivalent position with the restoration of pre-leave benefits. Importantly, however, upon the expiration of FMLA leave, if the employee is unable to perform an essential function of his position because of a physical or mental condition, he employee has no right to be restored to his former position or to any other position under the FMLA.

Often an employer is anxious to move forward with termination of an employee who has exhausted her FMLA leave but is unable or unwilling to return to work. While such terminations may seem uncomplicated, employers with employees on FMLA leave may have additional obligations under the ADA and workers’ compensation laws. See 29 CFR § 825.216(c). Most circuits and the EEOC have concluded that ADA “reasonable accommodations” include unpaid medical leave for a finite period, even if such leave is an extension of existing FMLA or company-provided leave time. Additionally, a variety of state workers’ compensation laws may also come into play. Employers terminating employees coming off of FMLA leave may also face statutory FMLA retaliation and interference claims.

To minimize the risk of litigation, a written and consistently enforced leave policy is a necessity for employers. Additionally, upon granting leave under the FMLA and/or a company leave policy, the organization should provide the employee with a letter outlining the duration of the provided leave time and the company’s policy for returning to work. This will serve to inform the employee of the company’s expectations and minimize the risk of retaliation and interference claims. As the end of the employee’s entitled leave approaches, the company should send a follow-up warning letter informing the employee that her entitled leave is set to expire and the date she is expected to report to work in order to maintain her position. Both letters should, of course, also address any specific workers’ compensation laws issues.

Importantly, if the employee is suffering from a disability that may be covered under the ADA, it is advisable to ask him to respond with any update on restrictions and any suggested reasonable accommodations. Recent EEOC activity demonstrates the peril of inflexible or automatic termination procedures that fail to consider ADA accommodation. In 2011, Verizon settled a $20 million EEOC disability suit regarding their no-fault attendance policy.  Under the policy, employees could be disciplined or terminated for a accumulating a certain number of “chargeable absences.” Verizon made no exception to this policy for employees who were absent due to a disability, which the EEOC contended was a failure to provide a reasonable accommodation.

Furthermore, in 2009, Sears settled a $6.2 million class action suit that alleged it maintained an inflexible workers’ compensation exhaustion leave policy and terminated employees instead of providing them with reasonable accommodations for their disabilities . After reaching the settlement, the counsel for the EEOC stated “The era of employers being able to inflexibly and universally apply a leave limits policy without seriously considering the reasonable accommodation requirements of the ADA are over.” With continued EEOC interest in this area, caution and flexibility, combined with written communication with employees on leave, are simple steps as part of an individualized process that can go a long way to reduce the risk of litigation.