FMLA, the cardinal law that governs leaves taken by employees, is a savior for employees. It not just helps employees get sudden leaves, it also arranges for 12 weeks of additional, albeit unpaid, leave to the employee in case of medical emergency. This leave is offered to eligible employees suffering from serious health conditions for which they become unable to perform essential functions of the job. There may be different scenarios where an employee may require such extension of FMLA leave. He may meet with an accident or suffer from a disease that requires him or her to be bedridden for months.
In such a situation, the employer needs to extend FMLA leave. The employee can get up to 12 weeks of FMLA extension, but for that the employee needs to make an appeal to the employer. In fact, getting an FMLA extension is not an automatic process. The employer may ask for a certificate from the treating physician to the effect that the condition of the patient is such as to call for extending his or her FMLA leave. If the employer feels that there is a genuine medical problem, he is expected to reasonably accommodate the employee’s concern with 12 weeks of FMLA extension without pay.
In case you seek extension of FMLA leave after your leave has ended, you have to appeal to your employer. The employer, in turn, has the right to call for additional details of the medical condition of the employee. If he is satisfied that the employee has an emergency condition and that even if he or she returns to the position cannot perform some of the essential functions of the job, can sanction 12 weeks of FMLA extension.
Absence After FMLA Leave
It must be said that employees’ absence after the FMLA leave without any communication or certificate from treating physician for extension of the leave may be viewed seriously by the employer. The employee may also get terminated. This is because the employer has the right to assess the impact of your absence from work and take a call after assessing the situation. However, if you are not communicating your continued absence, the employer is not in a position to assess the exact situation.
In case you have communicated your problem to your employer after the end of FMLA leave, it is also the responsibility of the employer to reasonably accommodate the employee.
Absence After FMLA Extension
The employee has to attend office at the expiry of 12 weeks of FMLA extension. However, if he or she is still not able to perform some or all of the functions of the job, the employer is free to terminate him. Yet, this is at this juncture that the ADA can take over from FMLA. Under the ADA, the employer has to consider whether or not the employee can perform all the functions of the job. If he is not able to do so, he must be given a reasonable accommodation such as a restructuring of portfolio, grant of more leave, changing work schedule etc.