FMLA Leave Ran Out but You Still Cannot Work? ADA Leave of Absence as a Reasonable Accommodation

FMLA and the ADA Are Different Laws

The FMLA gives eligible employees up to 12 weeks of job-protected leave in a year. The ADA applies to employers with 15 or more employees and does not set a number of weeks. Under the EEOC guidance on employer-provided leave, a leave of absence can be a reasonable accommodation when it is needed because of a disability, even after FMLA leave is exhausted, or if you were never eligible for FMLA. Our guide on FMLA rights covers the first 12 weeks.

When Extra Leave May Be Required

• You have a covered disability

  The condition must substantially limit a major life activity, and you must be able to do the job, with or without accommodation, once you return.

• The leave is for treatment or recovery

  Time for surgery, treatment, therapy or recovery tied to the condition can qualify.

• The leave has an end point

  A request with an expected return date, or a clear plan for one, is easier to support than leave with no end in sight.

• It does not cause undue hardship

  The employer may refuse if the leave would be a significant difficulty or expense given its size and resources.

Policies That Can Break the Law

The EEOC says an employer should not apply a fixed maximum leave rule without considering whether more leave is a reasonable accommodation. Firing someone automatically when leave ends, or requiring a worker to be "100 percent healed" before returning, can be a violation. The EEOC's guidance on reasonable accommodation and undue hardship explains how that review works. Employers can also offer other options, such as a part-time schedule or a transfer to a vacant position, and may choose among effective accommodations.

How to Ask

Ask in writing before your leave ends, name the condition or say it is a medical need, and give an expected return date if your doctor can provide one. Keep the doctor's notes, the dates, and the replies. The back-and-forth the law expects is covered in our guide to the interactive process. An employer may ask for medical documentation of the need.

If You Were Fired When Leave Ended

Save the termination notice and any leave policy you were given. Read our guide on being fired while on medical leave for related protections. A charge with the EEOC generally must be filed within 180 days, extended to 300 days in many states; see the EEOC page on filing a charge and our deadlines guide.

Free Case Review

Whether more leave was required depends on your condition, the employer size and your state law, which can be broader than federal law. Our team can review your situation at no cost, if you are eligible.