Employee not ready to return after FMLA leave? She may be eligible for additional unpaid leave

Do you have a rule that says employees who aren’t ready to return from FMLA leave when their time is up face termination? If so, consider providing at least limited flexibility under one circumstance.

If the employee also qualifies as ­disabled under the ADA, she may be entitled to additional leave as a reasonable accommodation. That’s especially true if she has received a definitive return date from her doctors and only needs a little more unpaid leave to recover sufficiently to perform her job’s essential functions.

Here’s how to approach such cases: If the em­­ployee requests reasonable accommodations, engage in the interactive process as required by the ADA. That means listening to her limitations and suggested accommodations and evaluating whether they are reasonable and possible. If she has a definite return date in the not-too-distant future, consider providing extra time off.

On the other hand, if she doesn’t have a return date or doesn’t suggest more unpaid time off, you don’t have to consider that possible accommodation.

Recent case: Mary Alice worked as a police officer and was a member of the SWAT team. She broke her leg when she went jogging during off-duty hours. She had surgery the same day and needed to take 12 weeks of FMLA leave because she couldn’t return to work without first under­going extensive physical therapy.

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The police department had a policy that required employees returning from FMLA leave to be fit for their old jobs. Mary Alice’s doctors said she wouldn’t be able to serve as a SWAT team member for at least a few months. However, they couldn’t provide an exact return date or even an estimated date.

Mary Alice then requested a light-duty position as a reasonable accommodation. Informing her that no light-duty positions were available, the police department denied the request. Then it terminated her.

Mary Alice sued, alleging that she should have been provided with additional unpaid leave as a reasonable accommodation and that the department hadn’t engaged in the ADA interactive accommodations process.

The court disagreed. It pointed out that the police department had considered her request, but then determined that it couldn’t accommodate Mary Alice because no light-duty jobs were open. And Mary Alice never requested additional time off, nor did her doctors provide a return date.

Employers, the court wrote, aren’t required to provide open-ended leave as an accommodation. In addition, they don’t have to consider possible accommodations the employee never requested. The case was dismissed. (Silva v. City of Hidalgo, No. 13-41064, 5th Cir., 2014)

Final note: Courts don’t require employers to have crystal balls. You’re under no obligation to guess at possible accommodations that the em­­ployee doesn’t suggest. Nor do they have to keep jobs open indefinitely.

However, should an employee request, for example, 30 days of unpaid leave after her doctor says she will be able to return to her old job at the end of that leave, do consider the accommodation. Don’t just categorically state that employees must return fully healed after their FMLA leave ends. Always remain open to an ADA accommodation request and show you seriously considered that request.