Q. One of our employees hurt her back lifting boxes. She has been off work for several weeks. We have been counting her absence against herentitlement. She was scheduled to return to work recently, but she now tells us the healing will take longer than expected. December is our busiest time of the year! Must we continue giving her leave?
A. Employees may take up to 12 weeks of unpaidin a 12-month period for a “serious health condition.” If your employee has not yet used 12 weeks of designated FMLA leave, you must continue her leave (assuming her injury still qualifies as a serious health condition).
There is no “undue hardship” defense under the FMLA, even though this is your busy season.
An employer may request medical recertification for a serious health condition if the employee requests an extension of leave or if the circumstances described by the previous certification (such as the duration or frequency of absences, the severity of the condition, existence of complications, etc.) have changed significantly. Here, you should ask the employee to provide recertification regarding the need for a longer absence.
When the employee has exhausted her 12-week entitlement, your obligation to give leave under the FMLA ends. However, if the employee continues to ask for leave and her condition qualifies as a “disability” under the ADA, you may need to give her more time off as a reasonable accommodation.
A “disability” under the ADA is a physical or mental impairment that substantially limits one or more major life activities.
Again, you should ask the employee to provide medical documentation regarding her condition and why additional leave time will enable her—in the reasonably near future—to perform her essential job functions. Provide the worker’s job description to the physician providing this information.
When deciding whether more time off would be reasonable, you may take into account the 12 weeks of FMLA time already used. In most cases, an additional leave period of “indefinite” duration will not be considered a reasonable accommodation.
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