What do you do when an employee wants leave for a medical condition, but has already exhausted or is not eligible for leave under the Family and Medical Leave Act? Tread carefully.

Maybe you’re not a covered employer under the FMLA. Maybe the employee is not eligible for FMLA leave, or has already exhausted all leave available under the FMLA. Or maybe you have a policy that says the maximum amount of leave any employee can take is 12 weeks, and the employee has already exceeded that limit.

Before terminating an employee in such a circumstance, employers with 15 or more employees must analyze the request further under the Americans with Disabilities Act. Although employers are allowed to have leave policies that establish a maximum amount of leave, they may have to make exceptions for employees who require more leave because of a disability.

The EEOC takes the position that “no-fault” maximum leave policies (under which employees are automatically terminated after they have been on leave for a certain amount of time) are unlawful. That is, an employer may not automatically terminate an employee after a certain amount of leave has been exhausted. The EEOC states that the employer must provide additional leave time under the ADA after FMLA leave is exhausted, unless: (1) granting the leave would result in undue hardship, or (2) there is another effective accommodation that would enable the employee to perform the essential functions of his or her position. Moreover, according to the EEOC, in evaluating what constitutes an undue hardship, the employer must consider whether it has a vacant, equivalent position for which the employee is qualified and to which the employee can be reassigned to continue his/her leave for a specific period of time and then, at the conclusion of the leave, can be returned to the new position.

So, even if an employee who needs medical leave has no available leave under your policies or the FMLA, the employer must go through the “interactive process” to determine whether the employee has a disability and if so, whether there is a reasonable accommodation the employer could make that would enable the employee to perform the essential functions of his or her job.

Courts evaluate the employer’s policies, the individualized circumstances of the disability, and the employer’s resources when determining whether an extended leave should be granted as a reasonable accommodation. Among the factors employers should consider: whether the employee provided a specific return date; whether the medical certification shows the additional leave will enable the employee to perform the essential functions of the job on return; the size and breadth of the employer’s operations and workforce, and whether the employee’s absence creates an undue burden on co-workers. For example, if the doctor says the employee needs two more weeks of chemotherapy after which she should be able to return to work at her 50-person call center job, that’s likely to be a reasonable accommodation an employer would be hard pressed to refuse.

But what if the employee tells you he doesn’t know when or if he’ll be able to return to work? Most courts hold that indefinite or prolonged leaves of absence are not required as a reasonable accommodation under the ADA. Indeed, in July, a court rejected such a claim by a former EEOC employee in a suit against the EEOC (Menoken v. Lipnic). The Plaintiff, Cassandra Menoken, worked for EEOC for 35 years, during which she filed multiple EEOC complaints. While her complaints were pending, Ms. Menoken requested leave because she was not able to meet the demands of her job since her health was affected by the uncertainty and delay surrounding her EEOC complaints. Ms. Menoken requested paid leave for “6 months or until her appeals were resolved, whichever proved be longer.” Two weeks later, Ms. Menoken submitted a doctor’s note claiming she suffered from anxiety and depression. The trial court held that Ms. Menoken’s request for an indeterminate leave to be coextensive with her prolonged EEOC activity was unreasonable. It agreed with the EEOC guidelines to the same effect that “[a]n employer does not have to provide paid leave beyond that which is provided to similarly-situated employees.” An appellate court refused to reconsider the trial court’s decision, finding that Ms. Menoken’s “requested accommodation of paid leave for an extended period of unknown duration was not reasonable.”

In another case, Echevarria v. AstraZeneca Pharmacetical LP, a pharmaceutical sales representative was diagnosed with severe depression and anxiety. The employee presented medical certification and requested leave estimated to last approximately five months. At the end of the employee’s five-month leave, the employee stated that she was unable to work. Her psychiatrist estimated her incapacity would last an additional 12 months. The court held that this additional leave request was unreasonable. Importantly, the court noted that the employee was unable to demonstrate that the requested additional leave would enable her to perform the essential functions of her position at a determinable time.

Employers should keep in mind that an employee who suffers a work-related injury and needs time off to recover may be entitled to leave rights of indefinite duration under state workers’ compensation laws.

The takeaway: employers should not assume that they do not have to provide additional leave once the employee has exhausted other available leave. Employers faced with the challenge of an employee with a disability seeking medical leave after FMLA leave has been exhausted, or when the employee is not eligible for FMLA leave, should contact experienced employment counsel for an individualized assessment of the employer’s best course of action prior to terminating the employee.