“Open” Might Not Mean Open: How FMLA May Affect a Position’s AvailabilityDoes a position that a company is holding for an employee out on FMLA leave an “open position” as contemplated by the Americans with Disabilities Act? In Maxwell v. Washington County, a Mississippi federal district court said the short answer is “no.”


The FMLA requires a covered employer to return an eligible employee to his or her job after 12 weeks of leave (or 26 weeks if leave is taken to care for a family member who is, or was, in the military). To fulfill that obligation, most employers hold the job open during that leave period.

Under the ADA, an employer must make “reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability.” One accommodation an employer must consider is transferring a disabled employee to an open position for which he or she is qualified if the employee cannot be accommodated in the current position. An ADA plaintiff bears the burden of proving an open position existed for which he or she was qualified and that he or she could perform those duties. A position is not considered open if the employer has a legitimate reason, unrelated to the employee’s disability, for reserving the position.


Marcus Maxwell worked for the Washington County Buildings and Grounds Department. He became disabled and requested, as a reasonable accommodation, to be moved to an apparently vacant position. The job, however, was only temporarily vacated because an employee, Walsh Wigfall, was on FMLA leave. While he was out on leave, Mr. Wigfall would not give a definite answer as to whether he intended to return to work after his leave expired. Additionally, Mr. Wigfall missed doctor’s appointments, which led county officials to the realization he was not returning once his leave expired. Mr. Maxwell argued that Mr. Wigfall’s job was open and the county’s refusal to transfer him to that job was an ADA violation.

The court found that, despite evidence it was unlikely Mr. Wigfall would return after his FMLA leave expired, his position was not open for purposes of the ADA vis-à-vis Mr. Maxwell. For the position to have been considered open, the county had to know Mr. Wigfall would not return from FMLA leave. In reaching that conclusion, the court noted that an employer “cannot be expected to preemptively terminate an employee” based on a possibility.


An employer may run afoul of the FMLA by preemptively terminating an employee on FMLA leave even though it has a reasonable belief the employee will not return from leave. Circumstances could change during the protected FMLA period, and an employee could unexpectedly return to work. Filling that job as another employee’s ADA accommodation could cause trouble. The employer must know the employee is not returning or face potential liability.

It is difficult to determine whether any employer has the requisite knowledge and information to terminate an employee during leave without violating the FMLA. An employer should consult legal counsel before doing so.