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Posted Wednesday, May 30, 2018 by Jules VanSant.

FMLA/ADA Leave ExtensionsWe get questions about employees who request extended leave after their FMLA leave expires. The question is whether extended leave is a request for reasonable accommodation under the ADA. Two different U.S. Courts of Appeals decided cases that draw a line between FMLA leave and the ADA requirement for reasonable accommodation. It appears that the ability to take post-FMLA leave under the ADA depends on whether the worker is an “otherwise qualified individual with a disability.” The courts held that employees who cannot perform the essential functions of their job at the time that leave is requested are not “qualified individuals” and not protected by the ADA.

Of course, if your company has a policy of allowing a certain amount of unpaid leave that is longer than the 12 weeks required by the FMLA, then the employee should be allowed that leave unless there are intervening, unique circumstances and provision for such discretion in the policy.

The EEOC isn’t necessarily on board with these new court decisions. According to EEOC policy, the employer should enter the “interactive process” with the employee if there is a request for extended leave beyond the 12 weeks of FMLA leave. It appears that the EEOC considers leave of fixed, relatively short duration as a reasonable accommodation under the ADA. During the interactive process, companies should consider two factors: 1) whether the employee is otherwise qualified for the position and 2) whether allowing the additional leave is an undue hardship. These ADA analyses may protect the company from liability in the event of an EEOC investigation or other legal action.

Source: PIA HR Update