Be careful before you automatically terminate an employee who was on FMLA leave as a result of a disability and is unable to return to work at the conclusion of the twelve (12) week period because of the disability, since it may violate the Americans with Disabilities Act. Many commentators and the U.S. Equal Employment Opportunity Commission have taken the position that once the FMLA leave expires, the ADA comes into play, and the employer must consider a reasonable accommodation, whether it is through extended leave or by other means.

In EEOC v. Children’s Hosp. & Research Ctr., N.D. Cal., 4:13-cv-05715, the EEOC and the Children’s Hospital entered into a Consent Decree in which the Children’s Hospital agreed to pay $300,000 to an employee with breast cancer when it terminated her and failed to provide extended leave at the end of a six months leave which was offered by the Children’s Hospital. The EEOC alleged that the individual’s termination violated the Americans with Disabilities Act because the employer refused to provide a reasonable accommodation for her disability. The EEOC argued that a grant of extended leave can be a reasonable accommodation.

The take-away from this recent decision is that employers must carefully consider whether they have an obligation to grant personal or extended leaves to individuals with the disability who are physically unable to return to work at the conclusion of their FMLA leave.