Even if an employee has exhausted their FMLA leave for the year, their condition may fall under the Americans with Disabilities Act (ADA). The ADA defines a disabled employee as one who has a physical or mental impairment that substantially limits one or more major life activities including working. If the employee’s condition is covered by the ADA, they would be entitled to continued job protection while on a leave of absence, so long as their leave did not create an undue hardship for the company.
This extension of the leave is not granted automatically. The employee has to contact you about needing an extension of the leave, so that you can engage in the ADA interactive process to determine if their condition makes them eligible for ADA leave, and how much additional time they would need before returning. To help you make this a smooth experience, we wrote an article on what this process looks like and what your obligations and rights as an employer are.
While you need to consider whether the additional leave is something you can grant without it causing an undue hardship, be aware that ‘undue hardship’ is a high bar to pass.
It is not necessary for an employee’s condition to fall under the ADA in order to offer additional leave. You may choose to extend their leave regardless (employers occasionally want to do this with their top performers) but keep in mind that doing this would set a precedent for future requests, and should therefore be carefully considered.
