Employers frequently face situations where employees are medically unable to return to work following expiration of Family and Medical Leave. When asked about their anticipated date of return, employees often reply that they will not know their work status until their next doctor's visit. Earlier this month in an unpublished decision, the Fifth Circuit Court of Appeals concluded that an employee's inability to provide an expected return date defeated her claim of discrimination under the Americans with Disabilities Act.

In Owens v. Calhoun Co. Sch. Dist., the plaintiff was a teacher who took FMLA leave for back and neck issues. Near the end of her FMLA leave, the school district contacted her to inquire about her expected date of return to work. The plaintiff replied that she would not know her medical status until her next doctor's appointment, six weeks after expiration of her FMLA leave. The school district terminated the plaintiff for inability to provide a date of return to work. She sued, claiming disability discrimination under the ADA.

The Fifth Circuit affirmed summary judgment for the employer. On appeal, the plaintiff claimed that there were material fact issues regarding her ability to return, and that the school district had failed to provide accommodation in the form of additional leave until she could see her doctor. The court rejected these contentions, holding that the lack of a doctor's release or any anticipated date of return after FMLA leave expired were legitimate grounds for termination. The Fifth Circuit also noted that during leave, the plaintiff had worked for another district and had attended educational conferences. These were viewed as additional legitimate grounds for the termination decision.

The EEOC takes the position that under the ADA, employers can be required to provide an additional amount of unpaid leave beyond FMLA as a reasonable accommodation. Many federal courts have found that employers are not required to provide indefinite leave in these circumstances. The Fifth Circuit appears to conclude that this additional leave requirement is not triggered unless the employee provides a reasonably definite date of return to work as of the expiration of FMLA leave. Leave requested until the next doctor's visit does not fall under this requirement, even if that visit could result in the doctor releasing the employee to return to work.

Employers should proceed with caution before relying on this case. The aggravating factors involving other work while on leave influenced this decision, and other circuits may not agree with the requirement for a fixed date of return after FMLA leave expires.