No waiting period for firing employee who can't return after FMLA leave

Q If an employee is unable to return to work after Family and Medical Leave Act (FMLA) leave and isn't protected under the Americans with Disabilities Act (ADA), how much time should we allow before we administratively fire her?

If the employee has exhausted all FMLA leave, and no consideration must be given for additional leave as a reasonable accommodation under the ADA, there's no set amount of time you must wait before proceeding with separation.

If you have provided periods of leave longer than 12 weeks to other employees outside of the FMLA context, however, consideration should be given to extending the difference in leave to avoid a disparate treatment allegation. If you only allow her 12 weeks of FMLA leave but allow another employee more for non-FMLA-related reasons, she could claim termination at the conclusion of FMLA leave was a pretext (or cover-up) for FMLA retaliation (i.e., terminating for taking FMLA leave).

Martin J. Regimbal, a shareholder with The Kullman Firm in Columbus, Mississippi, can be reached at 662-244-8825 or mjr@kullmanlaw.com.