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FMLA time used up? Consider ADA before firing

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in Employment Law,Firing,FMLA Guidelines,Human Resources

Q. An employee already took his 12 weeks of FMLA leave, but his doctors say he needs three to six weeks more. I want to terminate him because he isn’t ready to return. What’s the best way to go about it? — B.H., Florida

A. Many employers incorrectly assume that they are automatically allowed to terminate employees who fail to return to work after exhausting their 12-week FMLA entitlement. But when an employee’s FMLA leave is caused by his or her own serious health condition, you must then analyze the scenario under the ADA.

Remember: In some circumstances, employers are obligated to provide an unpaid leave of absence beyond 12 weeks as a “reasonable accommodation” under the ADA. Whether the employer will be obligated to do so depends on the specific circumstances, such as the type of job, the availability of temporary employees to fill in, the company’s size and the potential cost of the accommodation. Think of the FMLA as the minimum requirement. Then consider whether the condition is also a disability under the ADA. 

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