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What Should an Employer Do when an Employee Requests Further Leave After Exhausting FMLA Leave?

Posted by Barbara J. Zabawa | Aug 17, 2016 | 0 Comments

The Center receives these types of questions frequently.  In a recent case, Golden v. Indianapolis Housing Agency, No. 15-cv-00766 (D. Indiana), the U.S. government issued a statement of interest explaining the government's interpretation on what an employer should do when an employee who has exhausted family leave because of a medical condition asks for additional unpaid leave so the employee can fully recover.  In the Golden case, the employee was diagnosed with breast cancer and requested leave under the Family Medical Leave Act (FMLA).  When the 12-week FMLA leave expired, the employee was still unable to return to work because of her cancer and treatment, so she asked for extended medical leave from her employer.  The employer had an unwritten policy and practice to allow those with medical conditions to request an additional four weeks of unpaid leave.  If an employee is unable to return after the 16 weeks of leave, they are automatically terminated.  The employee in this case was still unable to return to work after the four-week extension, and wrote her employer requesting unpaid leave of absence “per city policy.”  The employer had a written policy that allowed six months of unpaid leave for general leaves of absence.  The employer denied the request and terminated the employee. 

The employee sued under the Rehabilitation Act of 1973, Section 504.  The analysis under that act is similar to the Americans with Disabilities Act (ADA).  The government said the employer in the Golden case should have considered the employee's request for additional unpaid leave.  Permitting the use of unpaid leave is a form of reasonable accommodation when necessitated by an employee's disability.  If the leave request is reasonable, the employer should grant it unless the employer can show that there is another effective accommodation or that granting additional leave would cause undue hardship under the circumstances. 

Here, the employer had an automatic denial of the leave request without considering whether the additional leave would cause an undue hardship.  Plus, it allowed longer leave for non-disability related requests (up to six months).  According to the government, the employer should have considered the employee's request and not fired her.  The government noted that an employer is not required to grant “indefinite” leave, but an employee need not provide an exact date of return either. 

Admittedly, the government's position requires the employer to conduct a difficult balancing act between allowing reasonable leave requests and not waiting forever before an employee can return to work.  The lesson to be learned, however, is that employers who face similar situations should consider all requests for leave and not automatically deny such requests.  If a leave request would create an undue hardship, the employer should diligently document that.  

One other issue raised by the government in the Golden case is that under the ADA, it is inappropriate for an employer to consider whether the employee could perform the essential functions of her job during the time period she requested disability-related leave as a reasonable accommodation.  Instead, the correct assessment of whether an employee is a qualified individual should be made as of the date the employee anticipates returning to work – i.e., at the end of the leave of absence the employee is requesting.  Thus, if an employee requests a leave of absence as a reasonable accommodation to his or her disability, the employer must decide whether the employee will be able to perform the essential job functions at the end of the leave, not during the leave. 

Of course, this case or the government's interpretation of the ADA does not address situations in which the employee has performance or conduct issues.  However, when the issue about whether an employee can perform the job relates to a disability only, employers would be wise to consider the government's position articulated in the Golden case.  Employers interested in reading the full statement by the government can do so by clicking here.

About the Author

Barbara J. Zabawa

Barbara is lead author of the book Rule the Rules on Workplace Wellness Programs, published by the American Bar Association. She is a frequent writer and speaker on health and wellness law topics, having presented for national organizations such as WELCOA, National Wellness Institute, HPLive, Healthstat University and HERO. Barbara J. Zabawa is a Clinical Assistant Professor for the University of Wisconsin Milwaukee College of Health Sciences, Department of Health Services Administration where she teaches graduate and undergraduate courses in health law and compliance, US health care delivery and health professions career development. Barbara also owns the Center for Health and Wellness Law, LLC a law firm dedicated to improving legal access and compliance for the health and wellness industries.  Before graduating with honors from the University of Wisconsin Law School, she obtained an MPH degree from the University of Michigan. Immediately prior to starting her own firm, she was Associate General Counsel and HIPAA Privacy Officer for a large health insurer where she advised on Affordable Care Act matters. She was also a shareholder and Health Law Team Leader at a large Wisconsin law firm. Barbara serves health and wellness professionals and organizations across the country as an advocate, a transactional lawyer and a compliance resource. Her commitment to improving health and wellness also shows through her community service. Barbara founded the Wellness Compliance Institute, a nonprofit organization that seeks to improve wellness program and activity compliance. She also is a Board Member for the Rogers Memorial Hospital Foundation, a health care organization that specializes in treating mental illness and she chairs the State Bar of Wisconsin Health Law Section. Barbara is licensed to practice law in both Wisconsin and New York.

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