Scenario 1: Employee’s own serious health condition — what about the ADA?
If your employee uses all 12 weeks of FMLA leave for their own serious health condition but still cannot return, your responsibilities may extend beyond FMLA. You may want to consider other leave options, including state or local laws that might offer more leave than FMLA, or any company leave policies you have, such as a medical leave of absence.
If the employee is ineligible for, or has exhausted, any state/local or company-provided leave options, the Americans with Disabilities Act (ADA) may come into play. The ADA requires employers to engage in an interactive process to determine whether a reasonable accommodation, such as additional leave, is appropriate.
What to consider:
- Review all leave options: Check if your employee qualifies for state, local, or company leave policies that cover their condition.
- Engage in the interactive process: Employers should initiate or continue the interactive process with the employee to explore accommodations that would enable the employee to perform the essential functions of their job. Alternatively, the employer may need to consider how long the employee needs to remain out, and whether extending the employee’s LOA may be considered a reasonable accommodation.
- Consider the length of leave: The ADA does not set a fixed limit on extended leave, but you are generally not required to provide indefinite leave. Understanding your employee’s expected return date can help determine if extending leave is reasonable.
- Understand job protection: If you extend leave as an accommodation, your employee typically has the right to return to their original job. However, if keeping the job open causes undue hardship for your business, you may need to explore other options or, in some cases, deny the extension.
- Review short-term disability benefits: These benefits may end when protected leave runs out. However, if your employee has an approved claim, benefits might continue even after their employment ends, depending on the policy.
Scenario 2: Leave to care for a family member
If your employee uses all FMLA leave to care for a family member, the ADA generally does not apply because the employee is not the individual with the disability³. Your obligations then depend on state or local leave laws and your company’s leave policies.
Extended leave options:
- State and local laws: Some states and localities provide additional unpaid or paid family leave entitlement beyond the 12 weeks under FMLA. These often run concurrently with FMLA, when applicable but can give your employee extra time off.
- Company leave policies: You may have caregiver leave or personal leave policies that provide additional time. Review these policies and check how they protect your employee’s job during extended leave.
- No extra leave available: If no laws or policies provide more leave, your employee’s leave ends after FMLA is exhausted. Any further absences may be unprotected.
How extended leave may affect employee benefits
When an employee stays out after FMLA leave, benefits can become more complex.
- Health insurance: Under FMLA, you must maintain the employee’s group health coverage as if they were working. After FMLA ends, continuing coverage depends on your policies, state laws, or COBRA rules. If the leave is unpaid, you may bill the employee for premiums or collect payments when they return.
- Other benefits: Retirement contributions, paid time off, and bonuses might be affected by extended leave. Whether these continue depends on state laws or your company’s policies.
