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What Should You Do if You are on FMLA Leave, Your Leave is About to Expire, and Your Doctor Says You Need to Stay Out of Work a

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Family and Medical Leave Act (FMLA)

Generally, the Family and Medical Leave Act (FMLA) allows an eligible employee working for a covered employer to take up to twelve (12) weeks of unpaid leave a year if the employee needs the leave for a serious health condition.  Sometimes, however, an employee may need more time than the twelve (12) weeks allowed under the FMLA before the employee is able to return to work.  For example, an employee may be undergoing conservative treatment for an injury when her FMLA leave begins.  In the midst of the employee’s leave, her doctor and she may determine that surgery is appropriate.  After the employee undergoes the surgery, her doctor may restrict her from work for a period of time that extends beyond the date when the employee’s FMLA leave ends.   Is the employer entitled to fire the employee because she is unable to return to work at the expiration of her FMLA leave?

Americans With Disabilities Act

Not necessarily. The Americans With Disabilities Act (ADA) may confer protections upon the employee beyond those conferred by the FMLA.  Courts have held that an employee may be entitled to an additional period of leave following the expiration of FMLA leave as a reasonable accommodation under the ADA.  In order to assert this right to a reasonable accommodation, the employee should communicate with her employer as soon as she knows that she will need more leave than the FMLA allows her.  While the law does not require the employee to use any magic words in requesting the additional leave, the best practice is for the employee to advise her employer in writing that she seeks additional leave as a reasonable accommodation for disabling impairments.  The employee should also state the time period of additional leave that she needs and should support the request with a letter from the medical provider recommending the additional leave.

Employees are not entitled to additional leave beyond FMLA leave in all circumstances.  An employee need only have a “serious health condition” to be entitled to FMLA leave, but the employee must be a “qualified individual with a disability” in order to be entitled to the protections of the ADA.  The law defines “serious health condition” differently from “disability,” and while a “serious health condition” may sometimes qualify as a “disability,” this is not always the case.  Furthermore, the additional leave requested must be for a reasonable period of time.  The ADA does not entitle employees to indefinite periods of leave.

If you are dealing with issues involving leave from your employment, you should consult an experienced employment discrimination lawyer such as Benjamin King at Douglas, Leonard & Garvey, P.C.  Attorney King can be reached at (603) 288-1403 or fill out our online contact form.