Legal Hotline: (844) 804-2016

Can employee who is requesting additional leave under the FMLA be terminated?


Hagood Tighe
Question: We have an employee who has exhausted his FMLA leave.  He cannot return to work yet, but says that he should be able to return soon. He is requesting three more weeks of leave. Can we terminate him and hire a replacement since his FMLA is exhausted?

Answer: Maybe not, depending on whether the employee has a disability.  As a result of changes in the law, it is much easier now for an impairment to be a "disability" under the Americans with Disabilities Act (ADA). Under the ADA, an employer has a duty to provide reasonable accommodations under the ADA unless doing so would cause an undue hardship on the company.  If this employee has a disability, you must determine whether you could provide the requested leave, as a reasonable accommodation.

Question: This is a follow up to my earlier question. We have a policy that says we will not provide leave for more than 12 weeks and if an employee cannot return by then, he or she will be automatically terminated. Is that ok?

Answer: No. The EEOC takes the position that policies that set a definite amount of leave, and no more, are per se violations of the ADA. This is because you are, in effect, saying that you would not consider leave, as a reasonable accommodation, once the 12 weeks has expired.  Instead, the EEOC says you are required to make this determination on a case by case basis, and provide the additional leave unless it creates an undue hardship on the company.

Learn more about your obligations to provide accommodations under the ADA

Note: Nothing in this SNPA Legal Hotline Q&A should be relied upon as legal advice in any particular matter.

Hagood Tighe is a partner in Fisher & Phillips' Columbia, S.C., office. He practices exclusively in the area of labor and employment law, representing management in traditional labor matters and employment litigation. He can be reached at

SNPA's free Legal Hotline for members – (844) 804-2016 – is designed to assist newspapers with a broad range of legal issues. Hotline attorneys and CPAs will tackle questions about circulation, independent contractors, labor and employment law, taxes, finances and accounting, employment benefits, open records, libel and privacy, and other issues newspapers encounter.

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