Employee terminations must always be handled carefully, but when the employee you're planning to terminate is protected by or taken leave under the Family and Medical Leave Act (FMLA) and the Americans with Disabilities Act (ADA), it can make an already tricky situation that much trickier. So, while details of specific situations should be examined individually, hare are some guidelines regarding when termination is permitted under each of these leave laws.

ADA

An employer may terminate an employee with a disability if the employee is not able to perform his or her job, and no reasonable accommodation can be made. Before termination, the employer should ensure that proper steps have been taken to determine if:

• The employee is a qualified individual with a disability
• That the employer has taken all appropriate steps to attempt to accommodate the individual; and
• That no reasonable accommodation can be made (i.e., an accommodation that does not impose an undue hardship on the employer).

FMLA

If an employee fails to return to work after an FMLA leave and if the ADA does not offer additional protection, the employer may be entitled to terminate the employee.

FMLA and ADA compared

When an ADA-covered disability also qualifies as a serious health condition under the FMLA, a question arises about the extent of the employer’s duty to provide leave time and reinstatement. An employee would be entitled to only 12 weeks of leave under the FMLA.

However, if the disability/health condition continues after 12 weeks, the employer may have an obligation to give more time off as a reasonable accommodation if the employee’s condition constitutes a disability under the ADA.

This article is part of a series that compares and contrasts various aspects of the two laws.

Next article: Recordkeeping and reporting under both laws.