In the past several months, we have run across several employee handbook or other employer policies that provide for termination of employment if an employee does not return from medical leave following a certain amount time, typically 12 weeks or expiration of FMLA leave. Employers with these policies are often surprised when an EEOC charge leads to a determination that the automatic termination language forms the basis for a for-cause determination by the agency.

The EEOC has long taken the position that policies that terminate workers once a set period of medical leave has expired constitute a per se ADA violation. If the employee’s medical condition meets the ADA definition of a disability, the employer must conduct an individual analysis of the situation, and only terminate following a consideration of potential reasonable accommodations. These accommodations can include an additional period of leave following expiration of FMLA if such leave is relatively brief, and is anticipated to allow the employee to perform the essential functions of their jobs upon return. Extended or indefinite leaves are not required, but the employer needs to make a case-by-case decision and not rely on a blanket policy.

This process can be more complicated if the worker was injured on the job. In addition to the FMLA and ADA, state workers' compensation laws restrict the ability of employers to terminate employees who file compensation claims. Depending on the state, these restrictions run from close to a prohibition on such terminations to a requirement that the employer show business necessity for such decision. Again, reliance on a policy will not meet this requirement and can result in a retaliatory discharge claim.

While it’s tempting to rely on a clear policy to make these employment decisions, doing so while minimizing legal risk requires an individual review of the circumstances and an evaluation of the need to provide additional leave under multiple applicable laws.

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