The Family and Medical Leave Act (FMLA) applies to employers with 50 or more employees within a 75 mile radius. Employees who have worked for a covered employer for at least 12 months and have at least 1,250 hours of service in the previous 12 months are eligible for up to 12 weeks of job-protected leave for certain medical-related reasons. Many employers, however, incorrectly assume that once an employee has been out of work for 12 weeks of FMLA-covered leave, that employee may then automatically be terminated for excessive absenteeism if he/she misses additional time from work for a medical condition.
The Americans with Disabilities Act (ADA) applies to employers with 15 or more employees, and must be considered in determining whether an employee who misses more than the 12 weeks of FMLA-protected leave can be terminated. Some courts have concluded that the ADA’s requirement of making a reasonable accommodation for a disability can sometimes require the employer to allow additional leave for a reasonable period of time to the employee.
A good example is an employee with cancer who is receiving chemotherapy treatments that cause the employee to miss 12 weeks of work. The employee’s physician says that the employee will only need to miss 2 more weeks of work before being able to return. In that case, the ADA would probably require the employer to allow the employee the additional 2 weeks absence as a reasonable accommodation of the employee’s disability. The ADA would trump the FMLA in that situation.