Most employees have heard about the Family & Medical Leave Act (or, “FMLA”). You or someone you know may even have exercised their rights under this law.

Under the Wisconsin FMLA, eligible employees may take up to 2 weeks of leave for their own serious health condition. Under the federal FMLA, employees may take up to 12 weeks of leave for their own serious health condition. But what happens when an employee is unable to return to work at the conclusion of his medical leave? Some guidance follows.

Under the federal FMLA, “an employee is entitled to be returned to the same position the employee held when leave commenced, or to an equivalent position with equivalent benefits, pay, and other terms and conditions of employment. An employee is entitled to such reinstatement even if the employee has been replaced or his or her position has been restructured to accommodate the employee’s absence.” Of interest here is the following limitation on an employee’s right to reinstatement: “If the employee is unable to perform an essential function of the position because of a physical or mental condition, including the continuation of a serious health condition or an injury or illness also covered by workers’ compensation, the employee has no right to restoration to another position under the FMLA. The employer’s obligations may, however, be governed by the Americans with Disabilities Act (ADA), as amended. See Sec. 825.702, state leave laws, or workers’ compensation laws.” 29 C.F.R. Sec. 825.216(c).

Many employers erroneously inform employees nearing the end of a medical leave that they must return “without restrictions.” Generally speaking, this requirement violates the Americans with Disabilities Act and the Wisconsin Fair Employment Act. An employee may have “restrictions,” caused by a disability, and thereby need an accommodation upon returning to work. As with any disabled employee, the employer must endeavor to reasonably accommodate the employee’s disability.

In Wisconsin, a leave of absence may be a reasonable accommodation under the state’s Fair Employment Law, Wis. Stat. Sec. 111.31, et. seq.; Target Stores v. L.I.R.C., 217 Wis. 2d 1, 576 N.W. 2d 545 (1998). The employer’s duty to provide a reasonable accommodation does not disappear upon the conclusion of an FMLA leave. Of course, the duty to accommodate does not arise unless an employee is “disabled” under the Americans with Disabilities Act or the Wisconsin Fair Employment Law.

Employees may wonder whether they should request a definite period of time for an unpaid, post-FMLA leave. There is no set answer to this question. The length and nature of any leave of absence following FMLA leave must focus on whether the leave would pose an “undue hardship” on the employer’s business. This is an individualized analysis. Employees should not accept an employer’s decision to terminate employment without considering whether an extended leave will effectively accommodate a disabled employee without presenting an undue hardship.

If you are nearing the end of your FMLA leave and your employer is requiring you to return to work without any restrictions, the employment attorneys of Hawks Quindel, S.C. may be able to assist you with understanding and exercising your rights.

Nicholas Fairweather

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