What Should Employers Do When Workers Exhaust FMLA Leave?

 

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When employees exhaust their leave under the Family and Medical Leave Act (FMLA), they may want to return to work or take additional leave. Here are some tips to help employers manage the return-to-work process and decide if providing more leave is appropriate.

Eligible employees can take up to 12 weeks of unpaid leave under the FMLA to care for themselves or a sick relative, and employers must reinstate workers to the same or an equivalent job when they return to work.

Employers should have a well-written policy regarding leaves of absence and require employees to provide updates on their return-to-work status, said Tamara Devitt, an attorney with Haynes and Boone in Costa Mesa and Palo Alto, Calif.

"If the employee does not provide an update regarding his or her status when his or her leave runs out, then the employer can look to the policy to determine next steps," she said.

Return-to-Work Policy

An employer may but is not required to have a return-to-work certification requirement as part of its FMLA leave policy. Under the policy, employers may require workers to provide certification from their health care provider stating that they are able to resume work.

Many employers do require a return-to-work certification to confirm that the employee's physician has released the employee to return to work, Devitt said. Employers may also request the certification to ensure they are complying with doctor-ordered work restrictions and to determine if the employee needs a reasonable accommodation to perform his or her essential job duties, she added.

The employer should only seek certification regarding the health condition that led to the employee's FMLA leave, said Román Hernández, an attorney with Troutman Sanders in Portland, Ore. Additionally, employers must recognize that a return-to-work certification may be legitimate even if it does not come from a medical doctor, he said. Depending on the employee's reason for taking FMLA leave, nurse practitioners, physician assistants and clinical psychologists may also release an employee for work.

Reasonable Accommodations

Employers may have an obligation to provide a reasonable accommodation even after an employee's FMLA leave ends. Some employers make the mistake of requiring an employee to be cleared to return to "full duty," which could create a potential problem under the Americans with Disabilities Act (ADA) or a similar state law, Devitt explained.

The employer must take restrictions into consideration if the ADA applies, communicate with the employee and decide if it can provide a reasonable accommodation so the employee can return to work with restrictions, noted Lauri Kavulich, an attorney with Clark Hill in Philadelphia. In some situations, the employer may also have an obligation under the ADA to grant additional unpaid leave as a reasonable accommodation.

There is no set time period for additional leave under the ADA, but what is reasonable may depend on the job, employer size and other conditions at the worksite. If a worker needs extended leave under the ADA, the employer may request medical documentation if it isn't obvious that the condition is an ADA qualifying disability, Kavulich noted. "Not all employees who qualify for an FMLA leave of absence will qualify for an ADA accommodation, although many employees with medical impairments will."

If the employer requests a return-to-work certification, it is important for the employer to apply the policy uniformly and provide notice of the policy to employees, Hernández said. The employer should require all similarly situated employees to present certification.

An employer that doesn't apply its policy consistently could be vulnerable to discrimination or harassment claims, noted Anne Cherry Barnett, an attorney with Reed Smith in San Francisco.

Additional Leave Laws

FMLA leave can run concurrently with other leave laws. Employers should also note that a state or local law or the terms of a collective bargaining agreement may govern an employee's return to work.

Some employers do not realize that workers' compensation leave may run concurrently with FMLA leave, Devitt said. "If an employee begins a leave of absence due to a workers' compensation injury, employers should be analyzing whether the FMLA—or an equivalent state law—applies and send the employee the applicable paperwork."

[SHRM members-only toolkit: Managing Family and Medical Leave]

Keep in mind that in some states, such as California, employers can't ask for medical-diagnosis information or communicate with the employee's doctor about the employee's medical condition without the employee's consent, Devitt noted. Employers should use forms that are compliant with the California Family Rights Act, rather than the FMLA, so they don't ask unauthorized questions under state law.

Employer Communication

Communicating with the employee about his or her leave status is important, Devitt said. Significantly, the employer must notify the employee when FMLA ends. 

"This creates an opportunity to discuss next steps and often leads to a discussion about the employee's expected work status," she said. If the employee represents that she or he has been released to return to work but hasn't provided a release as required by the employer's policy, the employer should ask again.

"Assuming appropriate notice was provided to the employee, an employer may delay the employee's return to work until the employee submits the required certification," Barnett explained.

Before firing an employee who doesn't return to work or submit the requested paperwork, the employer should consult with legal counsel, since the appropriate steps may vary depending on the employee's specific situation, Hernández said.

[Visit SHRM's resource page on the Family and Medical Leave Act.]

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