If our employee has used up all their family/medical leave and requests an extension, do we have to grant it, or can we terminate employment?

It depends. The Equal Employment Opportunity Commission (EEOC) has in recent years issued guidelines stating that an extension of federal Family and Medical Leave Act (FMLA) leave is one of the “reasonable accommodations” contemplated under the Americans with Disabilities Act (ADA).

The next question asked is “how much time?" This is not an easy answer, because the ADA does not define precisely what a reasonable accommodation is.

Several factors are considered in making this determination, such as: the size of the employer, how much more time is being requested, how busy the business is at the time the extension is requested, how critical is the job of the employee who is requesting the extension, how easy it is to shuffle her job duties to other employees in the interim, etc.

For example, some companies are seasonal in nature (like an accounting business during tax season), and an employee’s absence during a busy time of the year might be difficult to accommodate.

What is critical for an employer to realize is not to have a knee-jerk reaction to such a request. These are very serious issues, and employers should work hard to accommodate the requests. It is much easier to accommodate an employee’s request for more time versus defending a lawsuit based on denial of such a request.

The employer should enter into an interactive dialogue with the employee. The law wants employers to evaluate leave requests on a case-by-case basis, not point to a “line in the sand” in the belief that the employer can automatically terminate the employee.

Indeed, if an employee has a serious health condition that also constitutes a disability as defined by Government Code Section 12926 and cannot return to work at the conclusion of her California Family Rights Act (CFRA) leave, the employer has an obligation to engage that employee in an interactive process to determine whether an extension of that leave would constitute a reasonable accommodation under the Fair Employment and Housing Act.

Under California law:

"When the employee cannot presently perform the essential functions of the job, or otherwise needs time away from the job for treatment and recovery, holding a job open for an employee on a leave of absence or extending a leave provided by the CFRA [California Family Rights Act], the FMLA, other leave laws, or an employer's leave plan may be a reasonable accommodation provided that the leave is likely to be effective in allowing the employee to return to work at the end of the leave, with or without further reasonable accommodation, and does not create an undue hardship for the employer. When an employee can work with a reasonable accommodation other than a leave of absence, an employer may not require that the employee take a leave of absence. An employer, however, is not required to provide an indefinite leave of absence as a reasonable accommodation."

If the employer does indeed believe it cannot grant the leave request after discussing these factors with the employee, it may be advisable to consult with legal counsel to affirm the decision.

Read more about Return to Work After Family and Medical Leave and the Interactive Process for Reasonable Accommodations in the HR Library.