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Can You Terminate an Employee After FMLA is Exhausted?
The Family and Medical Leave Act (FMLA) allows eligible employees to take up to 12 weeks of unpaid, job-protected leave each year. During that time, the employer is required to hold the employee’s position or be prepared to offer a comparable one with the same duties, schedule, and pay. Group health coverage also has to be maintained, with the employer continuing to pay its usual share of the premium.
What Happens After 12 Weeks Are Up
Once the 12 weeks are exhausted, FMLA protections no longer apply, and the employee is generally expected to return to work, typically communicated via an FMLA exhaustion letter. But not every employee comes back on schedule.
Requests for More Time or No Communication
Some employees ask for more time off. Others don’t return and fail to contact their employer. In either case, the employer should assess whether the situation triggers obligations under other laws, such as the Americans with Disabilities Act (ADA) or state family leave laws. If no additional protections apply, the employer can proceed based on its normal attendance or separation policies.
Why FMLA Expiration Doesn’t Automatically Allow Termination
Once an employee uses up their 12 weeks of FMLA leave, the law no longer requires the employer to hold the position open if the employee wants more time off. However, that doesn’t mean the employer can fire the employee right away without further consideration. Rather, at this point, the focus shifts from FMLA to what other laws might now apply.
Under the ADA, if the employee has a condition that qualifies as a disability, the employer is responsible for considering additional leave or another accommodation that would allow the employee to return to work. State family and medical leave laws may also extend job protection beyond the federal limit. Some states provide additional weeks of leave, allow time off for different qualifying reasons, or impose separate reinstatement rules that apply even after federal FMLA leave is exhausted.
Before proceeding with termination, the employer should confirm that no remaining protections apply and that the decision is consistent with applicable laws and internal policy.
What the ADA Requires After FMLA Ends
After FMLA leave runs out, employers need to determine whether an employee’s condition qualifies as a disability under the ADA. If it does, the ADA requires employers to consider whether additional leave or another accommodation would allow the employee to return to work.
Additional time off may be reasonable if the employee gives a specific return date and the business can manage the extended absence without serious disruption. The ADA does not require employers to approve open-ended leave or indefinite extensions.
Requests Beyond Leave: Evaluating Other Accommodations
If the request involves something other than additional leave, such as a reduced schedule, modified duties, or a reassignment, the ADA requires employers to decide whether the employee could perform the core functions of their job with an accommodation, and whether that accommodation can be made without significant disruption to business operations.
What State Leave Laws Require After FMLA Ends
As of 2025, 13 states and the District of Columbia have enacted their own family and medical leave laws that either mirror or expand upon federal FMLA. Some programs apply to different qualifying reasons, while others simply extend total job-protected leave.
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California: CFRA provides up to 12 weeks of job-protected leave, which can run separately from FMLA for different qualifying reasons.
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New Jersey & New York: Each offers up to 12 weeks for family care or bonding with a new child, on top of FMLA. Combined use can extend leave to 24 weeks.
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Rhode Island: Parent and Family Medical Leave allows up to 13 weeks in a two-year period—potentially stacking with FMLA for up to 25 consecutive weeks.
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Oregon: OFLA provides up to 12 weeks annually, with an extra six weeks in specific circumstances, allowing up to 30 weeks when combined with FMLA.
Also included among the 13 states with mandatory leave are: Colorado, Connecticut, Delaware, Maine, Maryland, Massachusetts, Minnesota, and Washington—each offering state-funded leave that may run concurrently or consecutively with FMLA depending on qualifying reasons
What to Do If the Employee Doesn’t Return and Doesn’t Communicate
Start by Reaching Out, Not Assuming Abandonment
If the employee doesn’t return to work after exhausting their 12 weeks of FMLA leave and hasn’t requested additional time off, the employer should not treat the absence as abandonment without first attempting to clarify the situation. The next step is to contact the employee and ask whether they intend to return or are requesting more leave under another law.
The employer’s outreach should confirm that FMLA leave has ended, request an update on the employee’s ability to return to work, and provide a clear deadline for response. If the employee does not respond by the deadline, the employer can begin evaluating the absence under its standard attendance or separation policies. If the employee does respond, the situation becomes more nuanced.
When the Employee Responds but Doesn’t Mention the ADA
In some cases, the employee may clearly ask for more time off because of a medical condition. In others, they might simply say they’re not ready to return or that they’re still recovering—without referencing the ADA or using the word “accommodation.” Either way, the employer may have an obligation to treat the response as a potential accommodation request under the ADA. Any information that suggests a health condition is preventing the employee’s return can trigger the duty to consider whether the ADA applies and whether additional leave would be reasonable under the circumstances.
State Leave Laws May Also Apply, Even Without Specific Language
State family and medical leave laws follow a similar standard. If the employee says they need more time off for a reason that may qualify under state law, such as caring for a family member or continuing recovery after childbirth, the employer may be required to treat that as a covered leave request, even if the employee doesn’t mention the law by name. Some states explicitly adopt this FMLA notice approach and state within the law that employees don’t need to cite the statute by name, while others follow that approach in practice.
What Lawful Termination Looks Like After FMLA Ends
Once all applicable leave protections have been exhausted under FMLA, the ADA, and any relevant state laws, the employer can begin considering termination. However, that decision still requires care.
The employer should first confirm whether the employee has requested additional leave and, if so, whether that request is protected under the ADA or state law. If no other types of leave apply, the employer should give the employee clear notice that their protected leave has ended. Then, the employer should provide an opportunity for the employee to explain whether they intend to return. The back and forth communication that occurs at this stage should be clearly documented.
If the employee does not return by the expected date and no further protections apply, the employer may proceed with termination under its usual policies. The decision should be consistent with how similar cases have been handled and supported by records showing that legal obligations were reviewed and addressed before action was taken.
Talk to Conn Maciel Carey LLP Before Moving Forward with Termination
Once an employee has reached the end of their FMLA leave, the decision to terminate still carries legal risk if the employer hasn't fully evaluated other potential obligations. Conn Maciel Carey LLP’s national labor and employment practice group helps employers determine whether additional protections apply and whether termination is defensible based on the facts. The firm also defends employers facing claims of wrongful termination related to FMLA or ADA compliance. If you're unsure how to proceed, call us at (202) 715-6244 to speak with an attorney who can assess the situation and help you take the right next step.
This article is for informational purposes only and does not constitute legal advice. While we strive to ensure accuracy, laws and regulations may change, and unintended errors may occur. This content may not address every aspect of the relevant legal requirements. For guidance on your specific situation, consult your attorney.