What to do if an employee is unable to return from 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?

A   If an employee exhausts her FMLA leave and still can’t return to work, you have an obligation to determine the reasons why she is unable to return. In some circumstances, she may qualify for additional leave under another law.

For example, if an employee can’t return to work because of her own medical condition, the ADA applies. In that case, you must engage in an interactive discussion with her to determine if (1) an accommodation would allow her to return without posing an undue hardship or (2) a block leave of absence would accomplish the same purpose. Depending on the state in which you live, other leave laws may be applicable as well.

If the employee is unable to return for a reason that isn’t covered by another statute, your policies will govern. For example, if she can’t return for six weeks because her car is out of commission and she is waiting for a part to fix it, the absence carries no legal protection, and you could terminate her immediately. In that circumstance, however, some employers may have policies providing for personal leaves of absence and allow the employee to apply for one.