Can you simply fire the employee?
Well, the U.S. Department of Labor says “yes”. Sort of.
As part of a Q&A on the subject, the DOL states the following: “Employees who are unable to return to work and have exhausted their 12 weeks of FMLA leave in the designated “12 month period” no longer have FMLA protections of leave or job restoration.”
Case closed, right?
Not quite. As Jeff Nowak has pointed out in an excellent (and perhaps overlooked) blog post back in 2014 through an interview with EEOC Commissioner Chai Feldblum, there may be a separate analysis under the ADA as to whether extended leave is needed as a reasonable accommodation.
In that circumstance, an employer can argue that it would be an “undue hardship” to extend leave beyond FMLA leave:
[I]t is critical that employers identify how the requested leave actually impacts their business and operations. Cmmr. Feldblum confirmed that the several factors I identify below can help employers determine whether the requested leave of absence poses an undue burden. [T]hese factors often are quite helpful in guiding an employer’s decision to grant or deny leave:
- Significant losses in productivity because work is completed by less effective, temporary workers or last-minute substitutes, or overtired, overburdened employees working overtime who may be slower and more susceptible to error
- Lower quality and less accountability for quality
- Lost sales
- Less responsive customer service and increased customer dissatisfaction
- Deferred projects
- Increased burden on management staff required to find replacement workers, or readjust work flow or readjust priorities in light of absent employees
- Increased stress on overburdened co-workers
Jeff has an additional post this week about a new case discussing this issue further — particularly where the employee cannot give an estimate on when he/she may return to work.
The key takeaway? When you’re analyzing FMLA cases, don’t keep your blinders on. There are other laws that may be impacted. While terminating an employee who has exhausted FMLA leave may be allowed in some (and perhaps many) cases, employees may argue that employers have additional obligations.
And remember: Connecticut FMLA has additional requirements as well.
Beyond the law, there may be other areas of concern — perhaps a union contract or an employee handbook that has additional requirements.
In short, make sure you have all your bases covered before firing an employee who has exhausted FMLA leave.