Consider this fact pattern: An employee has a back problem that stretches out over a long period of time. At some point, the back problem becomes severe enough the employee goes out on FMLA leave. During the twelve weeks of FMLA leave, the employee ends up scheduling a surgery. The surgery takes place near the end of the twelve week FMLA period and the employee has a set of lifting restrictions that don't allow the employee to perform the essential functions of the position. Under those facts, there is no way the employee can return to work at the conclusion of the FMLA leave. Now what?

Employers face fact patterns like this one on a fairly regular basis. This is where it can get tricky. A reasonable accommodation under the ADA might be to provide the employee with additional leave beyond the protected twelve week FMLA absence. These cases are usually very fact specific and can be tricky to resolve. 

A federal court in Wisconsin recently decided a case with this set of basic facts. In the case, the employee requested another two to three months of additional leave to allow for recovery from the surgery. The employer denied the request for the additional leave and ended the employment relationship. As you might expect, the employee brought an ADA claim against the employer. In what might be a surprise for employers, the court ruled in favor of the employer. The court focused on the fact that the employee had not been able to perform the job duties for the three months during the FMLA leave and that the anticipated two to three additional months was too long for the employee to be away from work.

Keep in mind, this is just one court decision and it is from Wisconsin which isn't binding in our jurisdiction. The take away though, is that this particular court viewed a total leave time of five to six months too long of a period of time for the employee to be protected. By no means should this be viewed as a bright line rule for all employers.