FMLA provides for 12 weeks of unpaid leave to eligible employees for serious health conditions which can render an employee unable to perform some of the essential functions of his or her job. In fact, the length of an employee’s medical leave does come under the considerations of FMLA. However, there may be scenarios where the FMLA extension is not enough. The employee may meet with a grievous accident resulting in him or her being bedridden for months. In such circumstances, the employee needs to extend the 12 weeks of unpaid leave. For that one has to submit an application under the ADA or Americans With Disabilities Act.
FMLA and ADA
Americans With Disabilities Act also provides for leave in case of incapacity or temporary disability. There may also be equivalent laws in some states. So, in case an employee’s mental or physical condition becomes an issue, the employer needs to examine whether it is typical for FMLA, particular state law or the ADA. A particular employee may be covered by both FMLA, ADA and state laws. In that case, the employer needs to advance the most beneficial offer. However, there is no guarantee that the 12 weeks of unpaid leave advanced by FMLA will make the person completely fit. He may need to extend the FMLA. What should the employee do in this respect?
Serious Health Condition
An eligible individual with some kind of disability can get more than 12 weeks of unpaid leave and the employer must make an effort to extend that favor as a reasonable accommodation to the employee. However, the employer has the right to see if the additional number of days would impose any hardship on the business.
Nevertheless, it is the number of additional days that may become a bone of contention. The employer has the right to weigh the impact of long absenteeism of an employee on its operations. However, he also needs to account for the hardship of the employee concerned in performing his job. Such hardship factors are specified in ADA. However, it also needs to be kept in mind that the employer is not bound to offer a flexible period of absence as an accommodation under ADA.
The information about the serious health condition must be specified in the FMLA certificate. While the form has columns of information relating to a health condition for which the employee is seeking leave, once the twelve weeks leave has expired, the employee has to ask for an extension of leave under ADA.
For coming to a decision about granting additional leave to an employee under ADA after the expiry of 12 weeks of FMLA leave, an employer has to keep in mind that ADA is for those individuals who are able to perform the functions essential to their job in the immediate future.
Therefore, if the 12 weeks of FMLA leave is not sufficient, you may apply for ADA leave. However, for that, you need to obtain a certificate stating that you would be able to fulfill minimum functions of the job in the immediate future. The employer also has the right to inquire about it albeit within the ambit of the functions of your role as an employee.
