Termination Based on a Leave of Absence

leave of absence

Most employers are aware that employees may be eligible for leave under the Family Medical Leave Act (“FMLA”) to receive a maximum of 12 week per year. If the employee on leave wants to file for additional time off, employers should proceed cautiously. While the employee may no longer be entitled for the additional leave under FMLA, employees may be entitled to continued leave as a reasonable accommodation under the Americans with Disabilities Act (ADA).


Example: An employee protected under the ADA asks for an additional week off to fully recuperate from a serious illness after already taking 12 weeks off under FMLA.


If the employer does not face undue hardship from this additional week, the employer is obligated to…

  1. Allow the employee the additional week off with health insurance, provided that the employee pays her premium.
  2. Return the employee to her original position, assuming they are qualified to perform the essential functions of her job (with or without reasonable accommodation).
  3. If reasonable accommodation to return her to her original position cannot be made, then the employer must still reassign the employee to an available vacant position that the employee is qualified for with or without accommodation.


As you may have noticed, the employer’s responsibility under ADA is more extensive than in FMLA and requires a separate analysis. Under FMLA, employers may terminate the employee if they are no longer able to perform the essential functions of their original position after the 12 week period. An ADA analysis is more unpredictable. The employer’s obligations under ADA are primarily dependent upon any undue burden on the business, which includes significant costs, disruptions, and safety concerns that may arise from the employee’s absence.


The employer’s ability to prove undue burden can be difficult. In order to better protect themselves, employers should…

  • Confirm their employee handbooks indicate that leave is granted after an individual assessment. Employers may not apply a no-fault termination policy!
  • Maintain updated and (physically) descriptive job descriptions so that the essential functions of the job are clear.
  • Proactively assess an employee’s FMLA and ADA qualification when an employee requests leave.
  • Engage the employee in an interactive process (communicate and document interactions regarding ability and time of return) throughout the employee’s absence. If you do not attempt to engage in conversations, you lose an important defense if the case is litigated.
  • Document the effects of the employee’s absence…
    • Any decrease in productivity from temporary workers or workers assigned the employee’s tasks
    • Lower quality of work
    • Lost sales
    • Customer service issues
    • Deferred projects
    • Management burden increases
    • Co-worker stress increases
    • Decrease in morale


Employment termination based on leave requests can be fraught with legal liability. Call us before finalizing these decisions to avoid costly discrimination litigation.

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