Decision Tree: Termination of Employment After FMLA Leave Has Been Exhausted

1. State Leave Laws

Employee has exhausted all leave under the FMLA.

Ask this: Is there a state law providing additional leave?

Next step: If answer to above is yes, then apply additional leave requirements.

Next step: If answer to above is no, move to #2.

2. Workers' Compensation (WC)

Employee has exhausted all leave under the FMLA, and state leave is unavailable or exhausted.

Ask this: Is employee currently out of work due to a WC claim?

Next step: If yes, then consult legal counsel to determine whether termination is a viable option. Discuss risks and liability, as well as state laws regarding retaliation and reinstatement. Consider company policies or precedent regarding terminations or extended leave.

Next step: If no, move to #3.

3. Americans with Disabilities Act Amendments Act of 2008 (ADAAA)

Employee has exhausted all leave under the FMLA, no state leave is available, and leave is not protected under WC.

Ask this: Could this employee be covered under reasonable accommodation requirements of ADAAA?

Next step: If yes, then begin the ADA interactive process. 

Next step: If no, move to #4.

4. Leave of Absence Policies (LOA)

Employee has exhausted all leave under the FMLA, no state leave is available, leave is not protected under WC, and the ADA does not apply.

Ask this: Does the employee have any additional leave under the employer’s non-FMLA personal LOA policy (i.e., vacation/sick/personal leave)?

Next step: If yes, then allow the employee to use all non-FMLA personal LOA days before considering termination. Once all available leave, including non-FMLA personal LOA, is exhausted, then consult an attorney to determine whether termination is a viable option. Discuss risks and liabilities.

Next step: If no, move to #5.

5. Precedents

Employee has exhausted all leave under the FMLA, no state leave is available, leave is not protected under WC, ADA does not apply, and no personal LOA is available.

Ask this: Has the employer set a precedent that allowed another employee to take additional time off in the past without any adverse employment action being taken?

Next step: If yes, then be consistent and match the amount of time off provided to the other employee. After that, consult an attorney to determine whether termination is a viable option. Discuss risks and liabilities.

Next step: If no, then the employer likely has no additional obligations and should follow the advice of legal counsel.