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Employee’s out of FMLA: What options are left?

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in FMLA Guidelines,Human Resources

Q. An employee has been out on leave and has now run out of FMLA leave. It’s unclear when she will return. Can we terminate her employment?

A. Maybe, but before you do that, consider your potential obligations under other laws. If the employee has been out of work for her own serious health condition, she may have a “protected disability.” In that event, the ADA or state law may require additional leave as a reasonable accommodation.

To determine whether additional accommodation leave is required, you should communicate with the employee and the employee’s medical provider to determine how long the provider believes that the employee will be out. Then, you will need to consider whether it is reasonable or an “undue hardship” to provide additional leave time. Because of the importance of this communication and the difficulty of the determination, you should probably consult with an attorney.

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Megan L. Anderson is an attorney with Gray Plant Mooty’s Employment Law Practice Group in Minneapolis. Concentrating her practice in employment law counseling and litigation, she ­regularly advises employers and provides training on a variety of employment law issues. Contact her at megan.anderson@gpmlaw.com or (612) 632-3004.

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