What to Do When FMLA Leave Runs Out

The Family and Medical Leave Act gives eligible employees up to 12 workweeks of unpaid, job-protected leave in a 12-month period for their own serious health condition, a family member's serious health condition, or the birth or placement of a child, and up to 26 weeks for military caregiver leave (29 U.S.C. 2612; DOL).

Who is covered

Generally, employees who have worked for the employer for at least 12 months and 1,250 hours in the past year, at a location where the employer has 50 or more employees within 75 miles. Public agencies and schools are covered regardless of size.

Returning on time

You are entitled to be restored to the same or an equivalent position with equivalent pay, benefits and terms (29 U.S.C. 2614). The employer can require a fitness-for-duty certification for your own health condition if it has a uniformly applied policy.

If you are not ready to return

1. Ask for more leave as an ADA accommodation. If your condition is a disability, additional leave or a modified schedule can be a reasonable accommodation unless it causes undue hardship (EEOC). Make the request in writing and provide medical support.
2. Ask about other accommodations: reduced hours, light duty, remote work, schedule changes.
3. Check state law. Many states have their own family and medical leave laws, and some provide paid leave that can run separately or concurrently.
4. Check company policies for extended leave or paid time off.
5. Apply for disability benefits: short-term and long-term disability insurance, and Social Security if the condition is long-lasting. See long-term disability.

Can you be fired after FMLA runs out?

FMLA job protection ends after 12 weeks. However, an employer that automatically fires employees at the end of leave, without considering accommodation, may violate the ADA. Firing because you took FMLA leave is illegal retaliation. See disability discrimination.

Health insurance

During FMLA leave, the employer must maintain group health coverage on the same terms. Afterward, coverage depends on your employment status; COBRA may be available.

Keep records

Save leave approvals, medical certifications and all communications. If your FMLA was denied or interfered with, you generally have two years (three if willful) to file a lawsuit.

An employment lawyer can advise on accommodation requests and retaliation claims.

Sources

1. U.S. Department of Labor: Family and Medical Leave Act
2. Cornell Law School LII: 29 U.S.C. 2612, Leave requirement
3. Cornell Law School LII: 29 U.S.C. 2614, Employment and benefits protection
4. EEOC: Disability discrimination and employment decisions