Finish strong (or else): Taking leave as an accommodation after FMLA and PTO end

Q        We have an employee who has been out beyond their exhausted paid-time-off (PTO) balance and hasn’t provided medical documentation as requested. Can we terminate this employee, or would this risk a discrimination claim?

Terminating an employee who has exhausted PTO and failed to provide medical certification carries relatively little risk—but only if medical certification has been properly requested and leave as an accommodation adequately explored.

The Family and Medical Leave Act (FMLA) may, but likely does not, create risk. Employees on FMLA leave are generally protected from employment termination based on work absences. This is true when the employee formally requests FMLA leave using FMLA forms or an internal policy. It is also true when an employee does not expressly request leave, but their employer is aware of the need for leave. In either situation, however, an employer may terminate employment based on work absences if the employee does not provide properly requested medical verification. Even so, proceed cautiously. Before terminating employment, the employer should ensure it has (1) provided 15-day notice; (2) given additional time if an employee made good-faith efforts but could not provide the requested certification; and (3) otherwise complied with the FMLA’s specific requirements for requesting medical certification. If these requirements are met, risk of an FMLA interference claim for denying leave is relatively low.