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Employers with 50 or more employees have known for years they are required to give employees Family Medical Leave under appropriate circumstances.  However, they often struggle with what to do when an employee exhausts the twelve weeks of unpaid leave but is still not able to return to work.  Oftentimes, employers discharge the employee when the employee is unable to return, thinking they are in the clear because FMLA ran out.  This is a mistake; the employee may be entitled to additional leave under the Americans with Disabilities Act (ADA) or various state or local laws that afford protections for workers with disabilities. 

While we have written on this topic extensively, it is always worth repeating.  If an employee has exhausted FMLA leave and requests additional leave, contact labor and employment counsel or human resources before making a decision.  The employee may be entitled to additional leave.

This exact scenario continues to be one of interest for the Equal Employment Opportunity Commission, the federal watch dog for anti-discrimination employment laws as well as for the plaintiff’s bar in general.  For instance, in January, the EEOC settled with Pioneer Health Services, Inc., a Mississippi Corporation that provides inpatient and outpatient health care services, in the amount of $85,000 over this issue. 

According to the EEOC, in July 2012, an employee of Pioneer became ill and was hospitalized due to liver failure.  She requested leave and underwent transplant surgery.  Pioneer approved the FMLA request.  She was slated to return to work from FMLA leave but then requested a few weeks of additional leave.  Pioneer denied the request and discharged the employee because the employee’s FMLA was exhausted.  The EEOC alleged Pioneer’s conduct was in violation of the ADA, which requires employers to provide a reasonable accommodation for an employee’s disability, unless the employer would suffer an undue hardship as a result. The EEOC brought suit against the Company in February 2017 and in less than a year the parties reached this five-figure settlement. 

We see this same mistake by employers time and time again.  To attempt to avoid this scenario, employers should review their policies and train managers and supervisors on leave laws.  Managers should understand the Company will always consider a reasonable accommodation of leave.  Spotting this scenario and understanding the risks is half the battle. 

Brody and Associates regularly provides counsel on the FMLA, as well as employment law issues in general.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.454.0560