• Once FMLA leave has run out, employers may be obligated to grant additional unpaid leave as a reasonable accommodation of the ADA.

When employees exhaust their 12 weeks of Family and Medical Leave Act (FMLA) leave and still cannot return to work due to their own medical impairment, employers may have an obligation under the Americans with Disabilities Act (ADA) to grant additional unpaid leave as a reasonable accommodation, in some situations. An interactive process is necessary to determine — on a case-by-case basis — if it is an ADA-qualifying situation, and if it is possible to extend the leave period without it posing an undue hardship on the business. A disability is not necessarily the same as a serious health condition. A disability is an impairment that substantially limits one or more major life activities.

There is no obligation under the FMLA for an employer to notify employees when their leave is about to expire, or to proactively ask if a reasonable accommodation is needed under the ADA. Employers may, however, notify employees in advance, in writing, of the date of leave expiration and then request information regarding the ability to return to work, including an anticipated date of return. As part of this process, employers may also inform employees of the option to engage in a discussion about accommodations under the ADA to assist employees in returning to work, or to request additional leave because they are unable to return to work upon the expiration of the FMLA leave.

If extended leave is needed under the ADA, employers may request medical documentation to substantiate the existence of an ADA-qualifying disability and also the need for the accommodation. Not all employees who qualify for an FMLA leave of absence due to a serious health condition will qualify for an ADA accommodation, although many employees with medical impairments will.

Under the ADA, when an employee requests an accommodation, employers are to engage in the interactive process with the employee, with a goal of identifying possible reasonable accommodations. There are no required steps outlined for this process, but they could look like the following:

• Recognize an accommodation request,
• Gather information,
• Explore accommodation options,
• Choose an accommodation (if one is identified),
• Implement the chosen accommodation, and
• Monitor the accommodation.

Unlike the FMLA, under the ADA, there is no specific amount of leave time that is required as an accommodation. Thus, it is up to the employer’s discretion to determine if and how much leave is reasonable.

Employers need not provide an accommodation that poses an undue hardship, so that might be part of the determination in relation to how much leave is reasonable. Unlimited leave is not considered reasonable.

Under the ADA, employers must maintain group health insurance coverage for an employee taking leave or working part-time only if a company also provides coverage for other employees in the same leave or part-time status, and the coverage must be provided at the same terms and levels.

When ADA leave is granted, the company is expected to hold the employee’s position for the duration of leave, unless doing so will pose an undue hardship.

The ADA does not apply to time off to care for a spouse, son, daughter, parent, or other family member with a disability.