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FMLA expired and we haven’t heard from worker: Can we legally terminate?

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in FMLA Guidelines,Human Resources

Q. One of our employees was injured on the job and has been on leave for almost six months now. She continues to feel the effects of her injury and her doctor keeps sending notes continuing her absence for a few weeks at a time. Her eligibility for FMLA leave expired a couple of months ago and we haven’t received a response to the notice we sent her stating that her time off under worker’s compensation counts against any leave she may be entitled to “under the Company’s leave of absence policy and any applicable state leave laws.” Can she legally be terminated and replaced?

A. It depends on whether her condition constitutes a disability under the ADA and, if so, whether she is entitled to additional leave as a reasonable accommodation or some other reasonable accommodation.

At this point, you should have an interactive dialogue with her to discuss whether she is able to work on some modified basis and, if not, how much longer her doctor believes she will need to be absent. You may want to ask for documentation from her doctor on this point.

Once you have this discussion, you should evaluate whether accommodating her will cause an undue hardship, keeping in mind that the bar for proving an undue hardship is high.

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