Many employers covered by the Family Medical Leave Act (FMLA) include within their FMLA policy a provision stating that employees who fail to return to work upon the expiration of their FMLA leave will be treated as having voluntarily resigned their position. While it is true that employees absent from work on approved FMLA leave only have 12 weeks of leave protected by the FMLA, automatically terminating an employee who fails to immediately return at the end of those 12 weeks may result in an employer inadvertently violating the Americans with Disabilities Act (ADA) in certain situations.

A recent lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC) against a Michigan employer with just such a policy highlights the potential issues. In that action, the EEOC alleges that PACE Southeast Michigan maintains a policy which treats any employee unable to return to work following the expiration of the employee’s FMLA leave as having voluntarily resigned resulting in the immediate termination of the employee’s employment. By doing so, the EEOC claims that PACE has violated the ADA by failing to provide its employees with a reasonable accommodation of extended leave beyond the twelve weeks required under the FMLA.

For some legal background, the FMLA provides eligible employees (i.e., those that have be employed for a minimum of twelve months and have worked at least 1,250 hours during the 12 months prior to taking FMLA leave) employed by a covered employer (i.e., those with 50 or more employees) with 12 weeks of unpaid, job-protected leave for, among other qualifying reasons, an incapacity caused by the employee’s own serious health condition. Under the FMLA a “serious health condition” is an illness, injury, impairment or physical or mental condition that involves either inpatient care or continuing treatment by a health care provider.  Generally speaking, once an employee has exhausted FMLA leave, the employer is no longer obligated to hold the employee’s position and may therefore, terminate the employee without violating the FMLA if the employee does not return to work.

The legal analysis does not stop with the FMLA, however. While the ADA does not specifically provide employees with leave, leave can be a reasonable accommodation under the ADA. The ADA protects qualified individuals with a disability. The ADA definition of a person with a disability includes someone who has a physical or mental impairment that substantially limits one or more major life activities. Under the ADA, an employer must make reasonable accommodations to enable a qualified individual with a disability to perform the essential functions of a particular position, unless the accommodation would result in an undue hardship to the employer’s business. It is well settled that a leave of absence, either continuous or intermittent, may be a reasonable accommodation under the ADA.

In some cases, an employee’s serious health condition under the FMLA will not be a disability under the ADA. For example, a temporary condition, such as a one-time surgical procedure to repair a broken ankle requiring the employee to be out of work for 10 weeks, would not be considered a disability under the ADA, but such temporary condition would entitle the employee to twelve weeks of job protected leave under the FMLA. If the employee on FMLA leave to receive and recover from ankle surgery fails or refuses to return to work upon the expiration of FMLA leave, even though they are medically capable to return, the employer would be well within it rights to terminate the employee’s employment pursuant to its policy of treating a failure to return to work upon expiration of FMLA leave as a voluntary resignation.

However, if the employee’s serious health condition also qualifies as a disability under the ADA, before automatically terminating the employment relationship upon the expiration of the twelve weeks of FMLA leave, the employer should discuss the employee’s ability and plans to return to work to determine if some amount of extended leave is an appropriate reasonable accommodation that would ultimately allow the employee to perform the essential functions of the position upon the employees return to work. This is part of the employer’s obligation to engage in the “interactive process” with the employee under the ADA to determine if a reasonable accommodation exists.

In its complaint against PACE Southeast Michigan, the EEOC alleges that two employees terminated under PACE’s FMLA policy were qualified individuals with a disability under the ADA. The first employee on approved FMLA requested a brief extension of leave while she waited for new specialty contact lenses to arrive, which arrival was anticipated to be within 3 to thirty days. The second employee with severe anxiety and bipolar disorder requested an additional thirty days of unpaid leave and in doing so, provided the employer with medical documentation supporting the request. In both situations, rather than engaging in the interactive process with the employees, PACE Southeast Michigan terminated both employees when they failed to return to work upon the expiration of their respective approved FMLA leave.

In situations such as these, it is the EEOC’s position that an employer must engage in the interactive process with an employee with a disability who requests additional leave beyond FMLA leave to determine if such leave is a reasonable accommodation. Failing to do so, according to the EEOC, is a violation of the ADA. According to the EEOC’s September 13, 2024, Press Release “Employers must treat requests from disabled employees for unpaid leave as requests for reasonable accommodation. This employer easily could have granted these brief extensions of leave with no undue burden on the company. By refusing to do so, it violated the ADA.”

While the Seventh Circuit Court of Appeals (covering Illinois, Indiana, and Wisconsin) determined that the ADA does NOT require an employer to provide extended leave after the employee has exhausted their FMLA leave, the Court was addressing a long-term extension, not one of days or a few weeks. It is not clear that the Seventh Circuit would find that any leave beyond the FMLA was unreasonable. Most courts addressing this issue have concluded that so long as the requested extended leave is for a finite period and the additional time would enable the employee to perform the essential functions of their job, such extended leave is a reasonable accommodation under the ADA, and as such, must be offered to the disabled individual.

So, what should employers do when faced with an employee who claims they are unable to return to work after exhausting 12 weeks of FMLA and request an extension? Gather information about the medical basis for the requested extension. Then, consider whether the extension is reasonable or would create an undue hardship on your operations. Talk to the employee about any concerns you have in providing additional leave and find out whether another accommodation would allow the employee to return sooner. The bottom line is that these determinations are fact sensitive and a one-size-fits-all rule does not always work, even if it is easier to apply. As noted above, the analysis may be impacted by a variety of factors, including where the workplace is located, so reach out to legal counsel if you need assistance with the analysis. Taking the time to think through the request can help avoid unnecessary litigation in the future.

For assistance with navigating your company’s obligations under these intersecting laws, please contact one of the attorneys in Ice Miller’s Workplace Solutions Group.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.