Probably not. If an employee has exhausted 12 weeks of leave under the FMLA, he or she more than likely has a disability covered by the ADA. If this is the case, additional post-FMLA job protected leave should be explored before FMLA leave is exhausted. How do you do this? The EEOC calls it the “interactive process.” The interactive process is basically an open dialog with an employee about the employee’s chances of returning to work. If there is a good chance an employee will be able to return to work in the not-too-distant future, the employer must provide additional job protected leave unless it can prove that the leave would be an “undue hardship.” Proving an undue hardship is not easy.
The bottom line is this: The EEOC is much more likely to file a lawsuit against an employer if the employer fails to properly engage in the interactive process. You might want to keep this in mind the next time one of your employees is about to exhaust his or her leave under the FMLA.