Employee’s still out after 12 weeks of FMLA: Can we fire?

Q. If an employee exhausts his 12 weeks of FMLA and still isn’t able to return to work, should we terminate his employment immediately? — G.V., Texas

A. You should not have a blanket policy that calls for termination if employees are unable to return to work after exhausting their FMLA leave. Each situation needs to be reviewed on a case-by-case basis. Although an employee who is unable to return to work after exhausting his FMLA leave entitlement isn’t entitled to job reinstatement under the FMLA, you still need to review the situation in light of your obligations to accommodate disabilities under state and federal laws.

For example, if the employee says he needs only a short additional leave, you’ll want to review this as a request for an accommodation under the ADA and determine whether the additional leave is “reasonable.” Given that you’ve already accommodated the leave under the FMLA, it could be a challenge to articulate reasons why a short extension will cause an undue hardship on your organization.