Often a request for continued and prolonged leave can pose a serious concern, especially when dealing with an employee with a troubled work history. Frequently, employers believe they are within their rights to terminate an employee who has used all of her statutory or company-provided leave time. However, decision making in this area is complicated by the intersection of the Family Medical Leave Act (FMLA), the Americans with Disabilities Act (ADA) and state workers' compensation laws, in addition to recent Equal Employment Opportunity Commission (EEOC) enforcement activity.
Under the FMLA, problem situations frequently arise not when an employee requests leave, but when an employee attempts to return from leave with the same restrictions. When a covered employee returns from FMLA leave, the employer must restore the employee to the same position he previously held or to an equivalent position with the restoration of pre-leave benefits. Importantly, however, upon the expiration of FMLA leave, if the employee is unable to perform an essential function of his position because of a physical or mental condition, he employee has no right to be restored to his former position or to any other position under the FMLA.