.webp?width=1200&height=800&name=Mariah-Collins_-Axcet-HR-Solutions-HR-Consultant%20(1).webp)
Here's a question to ponder as an employer: Assume your employee has used all 12 weeks of FMLA leave but still can't return to work yet. Can you fill the position or end their employment?
The answer isn't automatic, because what happens when FMLA runs out depends on more than your employee's remaining FMLA balance. Before making a decision, you may need to consider the Americans with Disabilities Act (ADA), applicable state leave laws, company policies, disability benefits, and whether additional leave or another accommodation could allow your employee to return to work.
Taking a careful approach can help you avoid turning a legitimate staffing issue into a costly compliance problem. Here's what you should know.
For most qualifying reasons, eligible employees are entitled to up to 12 workweeks of FMLA leave during a designated 12-month period. You can use different methods to measure that period, so HR should confirm exactly when the employee's entitlement began and how much leave has actually been used.
FMLA can be taken continuously, intermittently, or on a reduced schedule when applicable, which means an employee may exhaust FMLA without taking 12 consecutive weeks away from work. Only the amount of qualifying leave actually used is counted against the employee's entitlement.
There's also an important exception for military caregiver leave, since eligible employees may receive up to 26 workweeks of FMLA leave during a single 12-month period to care for a covered service member with a serious injury or illness. Don't send an FMLA exhaustion letter until you're sure of the details and legalities.
Once an employee has exhausted FMLA, they generally don't have additional job protection under the FMLA for that particular leave entitlement.
However, that doesn't necessarily mean every other legal protection has ended, which is why complex leave situations often require careful HR compliance support.
For example, a policy stating that employees will automatically be terminated when their FMLA entitlement is exhausted may not account for other applicable laws or individual circumstances. The employee could have a disability covered by the ADA and need additional leave as a reasonable accommodation, or state or local leave requirements may provide additional protections. In other words, having FMLA exhausted doesn't necessarily mean employment must end.
FMLA and disability insurance serve different purposes. FMLA provides eligible employees with job-protected leave for qualifying reasons. Short-term disability (STD) and long-term disability (LTD) insurance provide wage replacement for qualifying illnesses or disabilities; they do not, by themselves, provide job protection.
The timing of disability benefits and FMLA protections are separate issues. An employee's eligibility for STD or LTD benefits does not extend their FMLA entitlement or guarantee continued employment after FMLA is exhausted. Employers still need to determine whether another law, such as the ADA or applicable state law, provides additional protections before deciding what happens next.
If you know an employee has a medical condition that may qualify as a disability, the ADA may require further consideration before termination. An employee doesn't necessarily have to use the words "ADA" or "reasonable accommodation" to trigger the accommodation process. A request for additional time away from work because of a medical condition may be enough to require you to consider whether an accommodation is appropriate.
Depending on the circumstances, you may request limited medical documentation needed to evaluate the employee's disability, functional limitations, and anticipated return-to-work date.
Additional unpaid leave can be a reasonable accommodation after exhausting FMLA when it enables your employee to return to work and doesn't create an undue hardship for you.
The key issue isn't whether the employee has already used the maximum amount of leave allowed under company policy, but whether additional leave would be effective and reasonable under the circumstances.
A definite return date can be easier to evaluate than an open-ended request, and you'll want to consider the expected duration of the additional leave, the employee's position and essential job functions, staffing needs, operational impact, and whether the absence would create an undue hardship.
Depending on the position and the employee's limitations, alternatives could include a reduced schedule, modified duties, temporary restrictions, remote work, or reassignment to a vacant position.
You don't necessarily have to provide the employee's preferred accommodation if another effective accommodation is available. The goal of the interactive process is to identify an option that allows your employee to perform their position's essential functions without undue hardship.
Terminating an employee after FMLA is exhausted may be appropriate in some circumstances, but you should generally reach that decision only after evaluating applicable protections and possible accommodations.
Termination may become an option when the employee can't perform the essential functions of the job, no effective accommodation is available, additional leave would create an undue hardship, or there's no timeline for their return.
You'll want to demonstrate that you applied policies consistently, evaluated the employee's circumstances individually, considered reasonable accommodations where required, and based the decision on legitimate business considerations rather than the employee's use of protected leave. The best way to demonstrate these requirements is by way of clearly outlined documentation.
For small and mid-sized employers without extensive in-house HR resources, access to experienced HR professionals can help ensure these decisions are evaluated consistently and in accordance with applicable requirements.
Communication should be factual, respectful, and carefully documented, as you'll need to avoid characterizing the employee's use of FMLA leave as misconduct or implying that the employee is being terminated because they took protected leave.
Knowing what happens when FMLA runs out is ultimately about recognizing that FMLA exhaustion may be one step in the process, not necessarily the end of it. A careful review of the ADA, state requirements, company policies and potential accommodations can help you make informed decisions while reducing compliance risk.
When an employee exhausts FMLA, the questions can quickly extend beyond leave administration into ADA compliance, documentation, accommodations and potential termination decisions. Axcet provides hands-on HR support as part of our comprehensive PEO services, helping small and mid-sized employers navigate complex employee situations and ongoing compliance responsibilities.
Talk with an Axcet HR Solutions representative today >>
Written by
Mariah Collins, SHRM-SCP, is a Human Resources Consultant at Axcet HR Solutions, specializing in people management, process improvement, and project management. With a strong background in payroll, benefits, and employee relations, she brings over four years of experience in providing HR solutions to small businesses.
Mariah holds a Bachelor of Business Administration in Human Resources from Emporia State University and is known for her expertise in helping businesses streamline HR processes while ensuring compliance. Her contributions to the Axcet blog reflect her deep understanding of HR challenges and her commitment to supporting small business owners.
.png){kind=logo}
.webp)
Let us know what you think...