One of the most vexing areas in employment is the interaction of the Americans with Disabilities Act and the Family and Medical Leave Act for individuals on a leave of absence because of a disability. If an employee has a disability and needs to take a leave of absence, the employer may provide qualified employees with twelve weeks of leave under the FMLA. But what happens when the FMLA period expires and the employee requests additional leave? 

The recent case of Bernhard v. Brown & Brown of Lehigh Valley Inc., No. 5:08-cv-4335 (E.D.Pa. June 14, 2010) shows how difficult this can be. In Bernhard, the plaintiff had cancer and was out on an FMLA leave of absence. The employee had also been on an earlier leave of absence (non-FMLA) and had taken intermittent leave. The employee did not return to work at the expiration of his FMLA leave and informed his employer that he would be out of work for at least three more months. The employer construed the employee’s request for additional leave as a request for indefinite leave. Thus, the employer terminated the employee’s employment because there was no end in sight as to the leave. 


Subsequently, the employee sued and the employer moved to have the case dismissed via a summary judgment motion. The court denied the motion sending the case to trial   The court believed it was questionable whether the leave was indefinite, noting that the employee had said he could return in approximately three months. The court emphasized that the employee presented considerable evidence that the employer did not engage in the interactive process with the employee or evaluate whether the additional leave of absence would present an undue hardship for the employer.


The lesson to be drawn from this case is that a leave analysis for an employee with a disability does not end upon completion of the employee’s FMLA leave. If an employee has completed his or her FMLA leave but requests to continue the leave of absence for a period of time, employers should engage in the interactive process with the employee to assess several considerations; i.e. whether the requested leave will allow the employee to complete the necessary treatment so that when the employee is scheduled to return to work the employee will be able to perform the essential functions of the job, whether the continued leave would constitute a reasonable accommodation, and whether the continued leave would present an undue hardship upon the employer. Failing to do so or simply terminating an employee’s employment who does not return to work after the expiration of the employee’s FMLA leave could lead to an unintended result.