Managing employee medical leave under the Family and Medical Leave Act, 29 U.S.C. §2601 et seq., (FMLA) and the Americans with Disabilities Act, as amended, 42 U.S.C. §12101 et seq. (ADA) has become a vexing issue facing employers. This article will provide recommendations and general principles for employers to best manage an employee’s request for leave as a reasonable accommodation. One hot topic in this arena is how best to manage an employee’s leave when the employee is medically unable to return to work after exhausting all other available leave. A plethora of courts have recently addressed this issue.
Employers sometimes mistakenly assume that if an employee has exhausted his or her FMLA leave, then the employee is never entitled to additional leave and can be terminated if he or she cannot return to work immediately. However, even if the employee’s leave is no longer covered by the FMLA (or was not covered in the first place), the employee may still have rights for additional leave under the ADA.
