Q. We have an employee who has been out beyond their exhausted paid-time-off (PTO) balance and hasn’t provided medical documentation as requested. Can we terminate this employee, or would this risk a discrimination claim?
A. Terminating an employee who has exhausted PTO and failed to provide medical certification carries relatively little risk—but only if medical certification has been properly requested and leave as an accommodation adequately explored.
The Family and Medical Leave Act (FMLA) may, but likely does not, create risk. Employees on FMLA leave are generally protected from employment termination based on work absences. This is true when the employee formally requests FMLA leave using FMLA forms or an internal policy. It is also true when an employee does not expressly request leave, but their employer is aware of the need for leave. In either situation, however, an employer may terminate employment based on work absences if the employee does not provide properly requested medical verification. Even so, proceed cautiously. Before terminating employment, the employer should ensure it has (1) provided 15-day notice, (2) given additional time if an employee made good-faith efforts but could not provide the requested certification, and (3) otherwise complied with the FMLA’s specific requirements for requesting medical certification. If these requirements are met, risk of an FMLA interference claim for denying leave is relatively low.
However, the Americans with Disabilities Act (ADA) is also relevant. Leave can be a reasonable ADA accommodation. Generally, the individual with a disability requiring leave bears the burden of informing their employer of the need for leave. But the ADA doesn’t require “magic words” to trigger the obligation to accommodate. An employer can be obligated to engage in the interactive accommodation process merely because they are aware that the employee has a disability and may require leave. In either situation, an employer can generally request medical certification of the disability creating the need for leave. If an employee fails to provide reasonably requested documentation of the need for leave, they may have failed to engage in the ADA’s interactive process—which can be grounds for termination. Whether that termination creates risk of an ADA claim for failure to accommodate or otherwise will depend on (1) whether the employer asked for certification repeatedly or just once, (2) whether the employer insisted on certification where the need for leave was obvious, (3) whether the employer provided adequate opportunity to provide certification, and (4) whether continued leave caused the employer undue hardship.
Crucially, ADA obligations to accommodate apply even after an employee exhausts FMLA leave and PTO—meaning employers should always consider ADA obligations before termination, and avoid terminating merely because FMLA and PTO have ended. Automatic termination after FMLA and PTO run out is a fast track to ADA liability. Equal Employment Opportunity Commission guidance expressly establishes that automatic termination at the end of a designated leave period violates the ADA.
State law typically, but not always, tracks the analysis above. Idaho and Utah, for example, lack FMLA-equivalent statutes. But both states have statutes prohibiting disability discrimination and requiring reasonable disability accommodations. Those statutes are likely violated when the ADA is violated by failure to accommodate the need for leave.
