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When an Employee’s FMLA Leave Expires, Can You Say Goodbye?

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in HR Soapbox

Few issues churn up as much HR confusion and frustration as the FMLA. The acronym officially stands for the Family and Medical Leave Act, but HR professionals who have seen employees abuse this 20-year-old inalienable right, know it more as the "Friday-Monday Leave Act."

That's why organizations are typically more than happy to quickly pull the termination trigger right after employees reach their legally allotted 12 weeks of FMLA leave in a year.

Not smart.

Some employees aren’t quite medically ready to return after their 12-week allotment is up. Those who need a finite amount of additional time off may be legally entitled to more leave as a "reasonable accommodation" that's required under the Americans with Disabilities Act (ADA). 

How you handle such requests for extra time can make the difference between an appreciative employee and a messy lawsuit. Quick-trigger firings after FMLA leave have led to an increasing amount of ADA claims.

Advice: Have a clear HR process for handling requests for leave after FMLA runs out. To decide if you must grant additional leave as an ADA accommodation, first determine whether the person’s condition qualifies as a disability under the ADA.

Then see if the employee’s certification includes a return date. That’s because unlimited leave is not considered a “reasonable” accommodation.

Finally, consider whether it’s reasonable to allow more time off based on your operational needs and the employee’s condition. For those who aren’t disabled but simply not yet fully recovered, you could deny such requests.

But if you deny some requests and approve others, be careful that you aren’t singling out employees based on illegal factors like gender. Example: Rejecting new mothers’ extension requests but approving those unrelated to pregnancy may be discrimination.

Consider this recent case from TheHRSpecialist.com: Natausha, an investigator for a Texas county, requested FMLA leave after she suffered a stillbirth. After the leave, she returned to work as scheduled. Shortly after, she got pregnant again. She took FMLA leave, which began before she gave birth. When her leave was set to expire, she requested more time off. The county denied her request. She was replaced.

Natausha sued, alleging she had been denied additional leave when others sometimes received more time off. But she never claimed she was disabled. Nor did she have any details about the other employees who allegedly received more favorable treatment. Her case was dismissed. (Johnson v. Dallas County, No. 3:12-CV-1461, ND TX, 2014)

{ 19 comments… read them below or add one }

Thomas Campbell August 29, 2017 at 6:55 pm

After experiencing lower back probs I had to go on FMLA and I also have been on Short Term Disability (STD) since March 15 2017. My STD expires Sept 12th. I finally have have a disc fusion surgery scheduled Sept 6th with estimated 12 week recovery. I am processing now for Long Term Disability (LTD). I received word recently I am terminated from my job Sept 13th with all Benefits stopping that date, COBRA and other paperwork has not arrived yet. Can I be terminated in this manner even with an estimated Return to Work Date 12 weeks from now – and before any post surgical diagnosis can be done to verify what I can and cannot do after the surgery is done?? I am a trainer, travel 85% USA, stand 12-14 hrs when I train and haul 50-75 lbs equipment/materials and luggage. I may not be able to do these things after surgery – but nobody even cared to wait and see – just terminated me. Can they do this that way?? Thank you.

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Lisa July 18, 2017 at 7:02 pm

My FMLA IS UP 7/27 BUT MY SURGEON HAS MY APROX RETURN TO WORK DATE 8/21. WORK IS DEMANDING I CALL MY SURGEON AND GET THE DATE CHANGED FROM 8/21 TO 7/27. WHAT SHOULD I DO?

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Amber July 21, 2017 at 11:47 am

You should call your doctor and ask for an additional doctor’s note. You should have a doctor’s note that covers your additional leave to cover you with your job. Common practice

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Demetrius August 17, 2017 at 8:44 am

I absolutely would not have my doctor change my return to work date to a lesser return to work date. Unfortunately, the doctors note extending beyond the FMLA expiration date may not be enough to save your job. FMLA is your final protection for your job. You’d probably exhausted all your sick, paid, personal, vac ..etc time. Once you run out of that your company doesn’t have to honor your doctors note. The company I work for certainly isn’t concerned about one after you’ve ran out of FMLA. The doctors note could be subjective, these days your doctor could be a relative, friend, significant other etc who easily prepare that document for you. It doesn’t hold much weight when you ran out all FMLA. Short-term disability would be you final option.

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Antoinette Johnson May 15, 2017 at 7:56 pm

My daughter has been placed on bed rest sine she has been pregnant and now she has exhausted her FMLA. Now her job tools get she can provide documentation for ADA but wrote her to ask why she can’t return right after giving birth because get doctor stated she needed to be out until she is well which dated 8 weeks after birth.

What can a pregnant mom do

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elwyn eggert February 17, 2017 at 2:13 pm

I am going to have surgery to replace my shoulder. I may not be able to return to work after this. Am I still qualified for fmla?

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Carmen January 26, 2017 at 4:01 pm

My FLMA ran out on 11/25/16 and on 1/31/17 is when iam going for surgery, the Dr. said I’ll be in a cast for a month, then therapy. What can I do.

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Ken Marcus January 8, 2017 at 4:07 am

For an injury on the job still under Drs. care over 12 weeks.They terminated my medical plan.Is that legal?

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SMH June 17, 2017 at 2:23 am

I believe you are suppose to be offered COBRA. You have 60 days after your medical is up to get it. This happened to me, I have a serious medical condition and my FMLA was exhausted. Now I hear I was terminated. Ive had 4 surgeries in 3 months and Dr will not release me back for several more months. I had to do all the leg work finding this out. Usually your automatically eligible for Cobra after your insurance expires. You need to call them and pay before benifits start, but they will back pay any Dr visits you are out.
My employer told me to go apply for unemployment, really? Don’t you have to be medically able to work? It’s a joke!

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Michael Vickers September 23, 2016 at 7:14 pm

My employer granted me FMLA for a injury they deemed me MAXIUMUM recovery but I have Diabetes and a shoulder injury and can’t do the DOT physical and pass they sent a letter today 9/22/16 they separated my employment I still need to get an insulin waiver for my DOT CDL license do they have to pay all of my unused Vacation time and do I have recourse cause I need the Insulin waiver

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Angie Davis September 8, 2016 at 10:57 pm

My FMLA Hours ran out in August 2016, my husband is on Disability because of Severe Congestive Heart failure and can’t drive to medical Appts. & Labs, Tests,etc… I’m his sole caregiver and I drive him to all his Appts. I’m a Diabetic and also have health issues , can my job fire me if I take off from work to take my husband to his Appts. ???

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Angie Davis September 21, 2016 at 11:25 pm

Can someone respond to my question to help me ??

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Bryan August 10, 2017 at 10:08 pm

All you have to do is go to HR and ask for fmla for a family member. If his doctor knows it’s that bad he will sign the fmla form.

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Mark July 5, 2016 at 5:24 pm

I have a chronic stomach illness which causes me to miss a significant amount of time at work. I am a city employee and have been granted FMLA over the past several years and have always been allowed to take extra time due to my condition. Recently our contract with the city was revised and they are being much more strict with taking days off that you do not have on the books. I’ve heard about ADA but no one can give me any real answers on how it works. What can I do if my FMLA runs out before the year is up but I still need to take more time off. I don’t want to be fired as I have a wife and 2 small children to support. Thanks.

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Amber Poulos July 22, 2016 at 4:58 pm

I have a chronic condition also and have rUn out of FMLA…as I just had a baby in April. The changes post baby have caused additional complications. ..I am hoping not to be fired. …please tell me if you get any info

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Theresa Moore June 17, 2016 at 6:12 pm

If an employee runs out of FMLA but is eligible to retire can a company fire him then refuse benefits including health insurance, long term disability and retirement as company policy states “employee must be in good standing” to receive these benefits?

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Lisa June 6, 2016 at 6:36 pm

I applied for FMLA in April to expire in October… Was in an accident and was out for 6wks. Since returning to work I requested Ada paperwork and been denied and also being told that I have use all of my FMLA and can’t request it again u till October… Is any of this true?

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Shawna Hamilton June 30, 2015 at 7:13 pm

I was informed my FMLA will run out in a couple days. I have been on it due to seizures I’ve been having 2/3 times per week. Medicine, so far ,isn’t working. I have permanent right temporal lobe brain damage. I am going through testing and trials with medicine. Can I be fired?

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Brandi hines May 25, 2016 at 10:06 am

Can you please let me know what you found out because my husband is having the same situation.

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