I have been in HR roles at employers that have dealt with tough decisions surrounding medical leave. It doesn’t get any more challenging than hearing that one of your team members is battling a physical ailment and there is no end in sight with their medical treatment or ability to return to work soon. How do you handle this situation?
The Family and Medical Leave Act (FMLA) was passed into law in 1993 to provide limited unpaid time off to employees in case they are sick, or to provide for a sick family member. When the period of leave ends, usually there is no defined policy, and multiple things can happen, depending on the specific situation. Knowing ahead of time how you will handle these situations and being proactive will ease the harsh reality that lies ahead.
As employers we must always keep in mind the Americans with Disabilities Act (ADA) when dealing with employee medical leave issues. In September of 2017, the 7th Circuit court upheld that an inability to work for a multiple-month period removed a person from the class of employee protected by ADA. In years past, we would extend FMLA as an accommodation under ADA if individuals could not return to work. We now know that if an individual needs a few extra days or a week or two, that is reasonable; but the 7th Circuit Court, which serves Indiana, Illinois, and Wisconsin confirmed that continuing someone on FMLA who could not return to work is not an accommodation that should be made.
Therefore, in the majority of cases where an employee is unable to return to work at or around 12 weeks of leave, you as the employer may need to be letting them go. It is a sensitive matter, but if you adequately prepare and remain transparent throughout the process, you will find that all parties involved can stay respectful and thoughtful along the way.
If you’d like specific guidance on how to lawfully and respectfully let someone go who is exhausting FMLA, please reach out to me. Waiting until the last hour should not be an option. Please allocate time to review your internal process and policies. Be sure to train and equip your staff on how to handle this emotional practice. Let us help you before another separation occurs.
For general FMLA guidance visit the Department of Labor website: https://www.dol.gov/general/topic/benefits-leave/fmla