Every so often I’ll hear a manager or even another HR person say “FMLA has run out, so we are going to terminate his employment.”
Hold on! Let’s talk about this.
If FMLA has run out, and the employee has told you that they do not want to return, then you would accept their resignation as of the end of FMLA. Great. That’s easy.
But what if the person is unable to return because of their continued medical condition/disability? Then the situation gets more complicated. 
Let’s look at an example. Let’s say your employee, John, is out on disability due to a back issue. FMLA has just run out. The ending of FMLA is a qualifying event to offer COBRA (or state continuation) and end his benefits until he elects COBRA. So of course you send COBRA paperwork to John in a timely manner. But before you end John’s employment you need to consider the disability laws, and I’m not just talking about the ADA (Americans with Disabilities Act).
In 2017, a 7th Circuit (which covers WI) court ruling (Severson v. Heartland Woodcraft Inc) indicated that an additional 3 months of time off after FMLA is not a reasonable accommodation under the ADA. That’s good news for employers; it offers some guidance for making leave decisions.
But for those of us with locations in Wisconsin, we also have to consider the Wisconsin Fair Employment Act (WFEA). Like the ADA, the WFEA does not consider a request for “indefinite” leave to be a reasonable accommodation. However, the WFEA has no rule regarding specifically how much additional time off after FMLA is reasonable or unreasonable. Employers should take care to not have a policy that sets a maximum amount of time that a person can be out on medical leave before risking termination. Depending on the situation, 3 months might be a reasonable accommodation, or maybe 6 months might be reasonable. The WFEA does not offer a limit.
But you do have a little flexibility. Under FMLA, you have to provide unpaid leave if the person is eligible and has a qualifying condition, even if other options might be available. Once FMLA ends, then ADA and WFEA are at play, and the requirement is that you find a “reasonable accommodation.” That might not mean that unpaid leave is the only option. For example, let’s say employee John wants additional time off for his back. ut let’s also say that the employer is able to modify his work area to accommodate his restrictions (the option to sit/stand or even lie down part of the day). Or perhaps the employer is able to offer light duty. If these options will allow John to safely work within his restrictions, John may not necessarily be able to insist on additional time off.
I sometimes hear people say, “His FMLA has ended, and he wants to come back, but he can’t do the essential functions of the job,” so they want to terminate. Once again, we must consider the WFEA here. The WFEA does not require that the person be able to perform all essential functions. In fact, in the infamous Crystal Lake Cheese Factory v. LIRC case, the WI Supreme Court supported changing the job rather significantly, even if that meant eliminating some “essential functions.”
So what is an employer to do? Consult an attorney. Working through a medical leave/disability situation is a mine field of trying to determine what is a disability, what is a reasonable accommodation, what is an undue hardship, how long is too long for unpaid leave beyond FMLA, etc. Each situation is unique, the laws are complex, and a misstep could result in an expensive and time consuming discrimination case. If you are looking at terminating someone with a medical condition, make that call and follow the guidance of your attorney.
To learn more about FMLA, consider registering for our FMLA Administration workshop:
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