Decision tree · Labor & Employment
The FMLA–ADA Interplay: A Decision Tree
Leave administration is rarely dangerous in the middle. It’s dangerous at the edges — when FMLA never applied, and especially when it runs out. The most expensive sentence in this area of law is “their FMLA was exhausted, so we terminated.” Week twelve is where the ADA analysis begins, not where obligations end.
Part one: the leave request
Does the reason qualify? A serious health condition of the employee or a covered family member, bonding with a new child, a qualifying military exigency, or caring for a covered servicemember with a serious injury or illness — note that military caregiver leave runs up to 26 weeks, longer than the standard 12.
If so: within five business days of the request, send the eligibility and rights-and-responsibilities notices; designate the leave within five business days of having enough information to determine it qualifies; request medical certification (employee gets 15 calendar days); and continue group health benefits. Job restoration to the same or an equivalent position is the default at return.
Then track exhaustion honestly — intermittent leave makes this harder than it sounds — and go to part two well before week twelve arrives.
Not eligible does not mean not protected. Go straight to part two — the ADA does not have an hours threshold or a tenure requirement. Check state and local law too: paid sick leave statutes, state family leave acts, and pregnancy accommodation laws often cover exactly the employees FMLA misses. If a work injury is involved, workers’ compensation rules run on their own track in parallel.
Part two: the ADA analysis
This part applies in three situations: FMLA never applied, FMLA is about to run out, or the employee is back at work but can’t perform the full job. The sequence is the same in each.
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Assume the disability prong is met.
Post-ADAAA, “disability” is read broadly, and arguing about it in your head is how teams talk themselves out of the process. If a health condition is limiting major activities or job functions, run the analysis.
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Start the interactive process — actually interactive.
Talk to the employee about what they can and can’t do and what would help. Get medical input where appropriate. Document every touch: date, who, what was discussed, what’s next. Courts forgive imperfect outcomes far more readily than silent employers.
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Consider accommodations including more leave.
A finite period of additional unpaid leave with an expected return date is a recognized reasonable accommodation — “six more weeks per her doctor’s note” is the classic example. Indefinite leave (“no idea when I can return”) is generally not. Also on the table: schedule changes, equipment, reassignment of marginal tasks, and transfer to an open position the employee is qualified for.
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If you’re claiming undue hardship, do the work.
Undue hardship is an analysis, not a conclusion. Who covered the work during the absence so far, at what cost and what strain? What does the position’s vacancy actually do to the operation? Write it down at the time — a hardship memo written during the decision is evidence; one written after the lawsuit is a target.
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Decide, communicate, calendar.
Whatever the decision, communicate it in writing, in plain language, with a contact for questions. If leave was extended, calendar the return date and the check-in before it. The file should read like a conversation, not a verdict.
Three patterns account for most of the lawsuits: automatic termination at FMLA exhaustion with no ADA analysis; rigid maximum-leave policies applied without individual assessment; and interactive processes that exist in policy but not in the file. All three are process failures — which means all three are preventable for free.