Are You Protected by the ADA if FMLA Leave Runs Out?

Are You Protected by the ADA if FMLA Leave Runs Out?

November, 2020

The Family Medical Leave Act (FMLA) provides certain employees with the right to take a maximum of 12 weeks unpaid leave within a 12-month period. The purpose of the leave must be that the employee has a serious medical condition, or has to care for a close family member with a serious medical condition. In some instances, however, an employee may take rightful leave, but still cannot return to work after the 12-week period. In these cases, employees may wonder if there is any other protection or recourse. In some situations, the Americans with Disabilities Act may provide additional protection. To determine if the ADA is applicable, as with so many legal employment issues, the answer is that it depends.

The Americans With Disabilities Act

In some circumstances, the Americans with Disabilities Act (ADA) protects employees after their FMLA leave has run out but they cannot return to work because of medical reasons. Under the ADA, employers are generally required to provide disabled employees with reasonable accommodations if it doesn’t create an undue hardship for the business, and the employee can perform the essential functions of the job with or without the reasonable accommodation The courts have ruled in some instances that an extended leave may constitute a reasonable accommodation.

However, the language of the two FMLA and ADA  is very important, and just because an employee cannot return to work does not necessarily mean they are entitled to extended leave under the ADA. One of the reasons that allows an employee to take FMLA leave, is that the employee must have a serious medical condition. The ADA, on the other hand, enables an employee suffering from a disability to work, if a reasonable accommodation can be made.

In some situations, the serious medical condition requiring use of FMLA leave, may also qualify as a disability under the ADA. The need for additional medical leave to treat that disability after the employee has used all FMLA time can be a reasonable accommodation in certain situations.

How to Request Extended Leave

When employees believe they are eligible for extended leave under the ADA, they should take specific steps to request the extended leave before they run out of FMLA leave. First, they should notify their employer that due to their medical condition, they will need more time off than the time they have available for FMLA leave. There is no requirement for an employee to use specific language, or indicate that they are protected under the ADA.

Employees follow the company’s procedures for requesting an ADA accommodation and submit their request in writing so that it is documented. The letter should request additional leave as a reasonable accommodation for a disabling injury. The letter should also include the amount of time being requested. It is also important to understand that the ADA does not provide employees with an indefinite amount of time for the leave. As such, the amount of time requested should be reasonable. A year of additional time off is usually considered unreasonable, while a few weeks or months of additional time off may be permitted. Factors such as the employee’s job and the size of the company will be reviewed.

A letter from the employee’s medical provider stating that additional leave is necessary is usually required.

Need More Leave? Call Our Columbus Employment Lawyers

If you have exhausted your FMLA leave and are now concerned that you cannot return to work, our Ohio employment lawyers at Marshall & Forman, LLC can assist with your situation. We will advise if you may be eligible for extended leave under the ADA, and if so, advise as to the best way to achieve a positive outcome. When you cannot work due to a medical condition, call us or contact us online to schedule a consultation with one of our experienced attorneys.