From the Hotline: Can Employer Terminate After Exhaustion of FMLA Leave

Question: Can an employer have a policy to terminate after an employee exhausts Family and Medical Leave Act (FMLA) entitlement?

Answer: Once leave under the Family and Medical Leave Act (FMLA) is exhausted, the employer would explore granting an extension of leave in accordance with the Americans with Disabilities Act (ADA). While the employer should explore the interplay of ADA, granting leave is done so long as it does not cause an undue hardship on the employer. This is not to be confused with a mere inconvenience; meaning to do so shall cause a significant financial burden on the employer.

An employer cannot have an “inflexible” leave policy, meaning leave is granted for “x” period and if the employee does not return in this period of time, they are terminated. A policy such as this may violate the ADA. While under this act an employer is not obligated to grant indefinite leaves, they are obligated to explore extension of leave that would not cause an undue hardship.

In cases such as this, it is best to determine if the employee may return, with or without accommodations at some point, and if the leave request is one that is “indefinite” prior to application of an inflexible leave policy.