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After FMLA Runs Out, Can You Get Additional Leave Under The ADA?

Thatcher logo.jpgThe Americans With Disabilities Act (ADA) requires employers to grant reasonable accommodations to people with disabilities. The Family and Medical Leave Act (FMLA) protects your job if you take up to 12 weeks of unpaid leave to care for yourself, a family member, or a new baby. If you have a disability and have taken all 12 weeks of FMLA leave, can your employer fire you if you need more time -- or would the extra time be considered a reasonable accommodation?

It's a good question, and one that the U.S. Supreme Court has been asked to clarify. Several federal circuit courts have ruled that some reasonable amount of additional leave may be required by the ADA. However, the most recent court of appeals to hear the issue decided that the ADA didn't require any additional leave.

The case involved an operations manager whose back impairment began causing him disabling pain when he wrenched it. On the last day of his FMLA leave, he had back surgery and needed three additional months to recover. He was fired.

He sued, arguing that the additional three months was a reasonable accommodation request and that his employer had violated the ADA by denying it. The 7th Circuit ruled that such a long period of additional leave was not reasonable or required by the ADA.

EEOC, other ADA experts warn against relying on 7th Circuit decision

Outside the 7th Circuit we might get a different result, particularly because the Equal Employment Opportunity Commission appears to see the issue differently. In a case against United Parcel Service, the EEOC argued that any leave policy could violate the ADA if applied rigidly.

In that case, an employee's fall caused her multiple sclerosis to flare-up. After exhausting UPS's generous 12-month disability leave, she requested more time and was fired. After 10 years of litigation, UPS and the EEOC settled the case for $2 million. The additional leave request, the EEOC said, was reasonable in the particular case.

The 7th Circuit's ruling has solidified what is called a "circuit split," meaning that the federal courts are in disagreement with one another. It's common in such cases for the Supreme Court to hear the case, although it has not yet agreed to hear this one.

If you have a disabling condition and need leave beyond what the FMLA offers, your best bet is to ensure your request is reasonable. Take an extra moment to write down exactly why you need the additional leave and try to justify it medically. If you're concerned about being let go, consider discussing your situation with an employment law attorney before you make the request.

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