Employee has used all FMLA leave? Assess disability status before terminating

The FMLA entitles employees to up to 12 weeks of unpaid leave to deal with a serious health condition. That doesn’t mean, however, that you should immediately terminate an employee who can’t return to her job right away. That could violate the ADA if it turns out the employee also meets the definition of disabled under that law.

In such a case, offering a few more weeks of leave might be a reasonable ADA accommodation.

Recent case: Kathryn Shimell took FMLA leave to undergo spinal surgery. Her employer terminated her when she didn’t return from leave after 12 weeks had passed. She sued, arguing that she was disabled and should have been allowed to take additional time off to recover as a reasonable accommodation under the ADA.

Her employer argued that although Shimell was disabled, she was not otherwise qualified for her job since she was unable to report to her office for about 10 months following her FMLA leave.

But the trial court hearing the case said a jury should have the chance to decide the case. It concluded that additional leave might very well have been a reasonable accommodation under the ADA. (Shimell v. De Lage Landen Financial Services, No. 05-CV-6620, ED PA, 2008)

Final note: Not every employee who qualifies for FMLA leave is disabled, but the reverse is almost always true—someone who is disabled most likely also has a serious health condition under the FMLA.