FMLA Leave Done and Able Employee Wants More Time Off

September 19, 2017

Topics: Disability and Leave Obligations

The federal Family and Medical Leave Act (FMLA) provides 12 weeks of job-protected leave in a number of scenarios.  It is not just for birth-mothers or others who become disabled.  FMLA leave can be taken by fathers to care for a new born; by daughters to care for ill parents; by mothers to care for hospitalized children; and by other family members to care for injured service members.  When FMLA leave is over in these situations, the employee may want to take more leave to care for their new born or injured family member.  Once their 12 (or 26 weeks when it comes to service members) of leave is over in these situations, however, employers usually have no legal obligation to provide additional leave unless state or local law requires it, or company policy permits it.

These able-bodied employees on FMLA leave have no protections under the disability discrimination laws as would disabled employees who are unable to return at the end of 12 weeks.

Companies have discretion as to whether to provide additional time off, but are not legally required to do so.  This often arises when a birth mother is certified by her doctor as able to return to work after 6 weeks of disability leave, but she wants to stay home for more time to bond with her baby.  This is permitted under the FMLA for 6 more weeks, until the total 12-week leave entitlement.  Sometimes, mothers of then not-quite-three-month-olds do not want to yet put their children in day care and ask for more time off.  Under the law, no more leave time needs to be provided.  The company can determine based on business factors such as staffing needs, employee morale, company policy and precedent, whether to allow more leave in this situation.

Employee leaves can pose tricky legal issues and it is always best to consult with counsel to make sure both the company’s and the employee’s rights are protections and obligations are met.