Don’t Forget That 12 Weeks Really Doesn’t Mean 12 WeeksI frequently receive calls from clients involving an employee who is about to use up all of his available medical leave (FMLA or otherwise), but who has little chance of returning to work anytime soon. Many times, the employee has some sort of condition that the doctors cannot quite figure out or has a workplace injury and simply wants to maximize his workers’ compensation claim recovery in any way possible. Either way, the common element is that the company and the employee have no idea when the employee might return to work, so the company cannot make definite plans to cover the employee’s work duties.

The most important concept to remember in these situations is that fulfilling the FMLA’s 12-week leave requirement may not mean that a company has met all of its legal obligations. Not only that, even if the company has a longer leave policy, that may not satisfy the legal obligations either.

The legal question is not whether the company has a leave policy (and applies it nondiscriminatorily) but whether the policy takes into consideration the individual needs of the employee. More specifically, the legal question is: Should the employer consider extending the leave beyond the employee’s entitlement if it will enable the employee ultimately to return to work?

Work injuries can present a particular form of the problem. If a work injury is involved, many states have anti-retaliation provisions in their workers’ compensation statutes. If a company makes a discharge decision that is not tied to a specific company policy, like an attendance policy, the decision can appear retaliatory. To address leave for workers’ compensation injuries that often take longer than 12 weeks to resolve, many companies have no-fault maximum leave policies that provide leave longer than the FMLA’s 12 weeks. Many states, like Alabama, will uphold discharge decisions under these policies as long as they are applied to workers’ compensation and non-workers’ compensation leaves equally.

However, these maximum unpaid leave policies often present the exact same problem as the FMLA even though they are longer. What happens when the leave is about to expire but the company still does not know the employee’s intentions? Should the employer consider extending the leave beyond the maximum leave period if it will enable the employee ultimately to return to work? If so, for how long?

According to the EEOC, employers absolutely must consider leave extensions, whether they involve FMLA leave or any other company leave. The EEOC and many courts consider a leave extension a “reasonable accommodation” under the ADA. The EEOC’s enforcement guidance specifically states that “if an employee with a disability needs additional unpaid leave as a reasonable accommodation, the employer must modify its ‘no fault’ leave policy to provide the employee with the additional leave.” The guidance also states that an employer must hold an employee’s job open unless the company can prove that it is an “undue hardship” under the ADA.

Two cases from the EEOC’s press release page are illustrative. In June of 2014, the EEOC entered into a consent decree with Princeton Healthcare Systems in New Jersey to settle a lawsuit alleging that the hospital automatically fired disabled employees after 12 weeks of FMLA leave. The settlement amount was $1.35 million. Similarly, just on November 4, 2014, the EEOC entered into a consent decree with Doumak, Inc., a Chicago manufacturing company. In that case, the challenged leave policy that required automatic discharge actually was contained in a collective bargaining agreement. The settlement amount was $85,000.

The bottom line is that a policy requiring automatic discharge at the expiration of company leave—whether FMLA or otherwise—is suspect in the eyes of the EEOC. The EEOC wants to see individualized decision making with the interactive process between employer and employee as contemplated by the ADA. Our advice: If an employee’s medical leave is about to expire and you do not know what his intentions are—you better ask!