The EEOC has made it known that it will be seeking out companies maintaining automatic termination policies for absentee employees missing periods of work beyond their FMLA allotment. This new trend is becoming more prevalent because many FMLA leave cases are being automatically transitioned over to ADA (Americans with Disabilities Act) cases once an employee remains unable to return to work after all possible leave has been taken.
The trick here is that while these employees could often legally be terminated under FMLA rules, this is not so under the ADA. Under the Act, employers must first engage in the process of determining whether an employee can continue to do his or her old job with reasonable accommodations.
Attorneys at the recent Labor & Employment Law Advanced Practices (LEAP) symposium in Las Vegas advise that the best way to avoid potentially federal investigation is to simply assume that all FMLA cases will become ADA cases should they extend beyond the legal FMLA leave period. As the FMLA period nears the end, it is best to begin contacting both the employee and the relevant medical providers to determine his or her ability to perform essential job functions in the presence of accommodations. Employees may then be placed on unpaid leave, in lieu of termination, while the situation is addressed.