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FMLA Exhaustion Letters: A Guide for Employers

What is FMLA?

The Family and Medical Leave Act (FMLA) is a federal law that provides eligible employees with the right to take unpaid, job-protected leave for specific family and medical reasons. The FMLA ensures that employees can handle personal or family health issues without the risk of losing their jobs. FMLA entitles eligible employees to up to 12 weeks of leave in a 12-month period, and is guaranteed their job, or an equivalent position, upon their return from leave. FMLA can be used for various reasons, including:

 

  • Serious health conditions that prevent the employee from working.

  • Caring for a spouse, child, or parent with a serious health condition.

  • Birth of a child or care for a newborn within the first year of life.

  • Placement of a child for adoption or into foster care.

  • Qualifying exigencies related to a family member’s military service.

 

To be eligible for FMLA, employees must:

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  • Work for a covered employer (generally, public agencies, schools, or private employers with 50 or more employees).

  • Have worked for the employer for at least 12 months.

  • Have worked at least 1,250 hours in the 12 months prior to the start of the leave.

FMLA Exhaustion

FMLA exhaustion occurs when an employee has used all their entitled leave under the Family and Medical Leave Act, but wish to take additional leave. Employers must be aware of their obligations when this happens, as mishandling FMLA exhaustion could lead to various legal risks, including:

  • FMLA Violation: Failing to follow FMLA guidelines can result in violations of the federal law and some significant penalties such as back pay, front pay, compensation for lost benefits, liquidated damages equal to the amount of lost wages, attorneys’ fees, and court costs.

  • ADA Violation: If an employee’s condition prompting their FMLA leave qualifies as a disability under the Americans with Disabilities Act, employers may be required to extend their leave as a reasonable accommodation. Failure to do so could result in ADA discrimination claims.

  • State Law Violations: Some states have their own family and medical leave laws that provide additional protections. Noncompliance with these laws could carry additional penalties.

  • Wrongful Termination Claims: Terminating an employee immediately after FMLA exhaustion without exploring other options (such as the ADA accommodations) may lead to wrongful termination lawsuits.

  • Retaliation Claims: Employees are protected from retaliation for using FMLA leave. Because of this, terminating or demoting an employee for taking FMLA leave could result in a retaliation claim, either warranted or unwarranted.

Intermittent FMLA Exhaustion

Intermittent FMLA leave allows employees to take leave in separate blocks of time for a single qualifying reason, rather than taking continuous leave. Managing intermittent leave exhaustion presents unique challenges for employers, as tracking and calculating intermittent leave differs from continuous leave. It is important that employers handle instances of intermittent FMLA exhaustion properly to avoid confusion and remain compliant.

 

  • Tracking Intermittent Leave: Unlike continuous leave, intermittent FMLA leave is taken in small increments. Because of this, employers must track each absence accurately and deduct it from the employee’s total FMLA entitlement. It is important to use a reliable system to record the exact hours or days an employee takes to avoid accidentally exceeding the 12-week limit.

  • Clear Communication with Employees: Intermittent leave is deducted based on the actual time taken off. For example, if an employee works an 8-hour day and takes 4 hours off, only 4 hours are deducted from their total leave balance.

  • Next Steps After Intermittent Leave Exhaustion: Once the employee’s intermittent FMLA leave is exhausted, employers must follow the same steps as with continuous leave exhaustion. Most notably, if an employee is unable to return to work on a full-time basis, explore options under the ADA, such as offering a modified schedule or additional unpaid leave.

  • Documentation for Intermittent Leave: Keep detailed records of each instance of intermittent leave, including the reason for the leave and the exact amount of time taken. Regularly update both the employee and HR records to be certain that leave balances are up-to-date and accurate.

Employer Considerations After An Employee Has Exhausted FMLA Leave

Once an employee has used up their FMLA leave, employers need to carefully follow legal guidelines to avoid compliance issues. Having a clear process in place ensures both the company and the employee are protected. Employers should:

 

  1. Evaluate the Employee’s Situation: Determine whether the employee is ready and able to return to work

  2. Assess ADA and Other Legal Obligations: If the employee has a medical condition that qualifies as a disability, explore reasonable accommodations under the ADA. Consider whether the employee can return with modified duties or a different schedule, as opposed to more leave.

  3. Communicate Clearly with the Employee: Write an FMLA exhaustion letter notifying the employee in writing that their FMLA leave has been exhausted. Clearly outline the next steps, whether that means returning to work, discussing accommodations, or other available options.

  4. Document All Actions and Communications: Make sure that all decisions and communications are documented to protect against potential claims.

  5. Review and Apply Company Policies Consistently: Verify that all company policies related to FMLA exhaustion, leave, and termination are applied equally to all employees. Consistency helps reduce the risk of discrimination or retaliation claims.

Return-to-Work Policies

When an employee returns after exhausting FMLA leave, employers are required to follow return-to-work policies to stay compliant with the law. Clear policies help prevent confusion, legal issues, and include the following elements:

 

  • Clear Expectations for Returning Employees: Notify the employee in writing of their expected return date before their FMLA leave ends. Make sure the employee understands their responsibilities upon returning, including their position, hours, and duties.

  • Restoring the Employee to the Same or Equivalent Position: Under FMLA, the employee has the right to return to the same or an equivalent position with the same pay and benefits. Make sure that any modifications made to the role (if applicable) comply with FMLA guidelines.

  • Assess the Need for Accommodations: If the employee has a medical condition that requires accommodations under the ADA, work with the employee to determine what is reasonable and necessary for their return.

  • Communicate Clearly with the Employee: Inform the employee of their return-to-work rights and responsibilities in writing. If any accommodations are required, document the discussions and agreements made.

  • Monitor the Employee’s Transition: Allow time for the employee to transition back to their full duties, especially if they have been on extended leave. Periodically check in with the employee to facilitate a smooth return, particularly if accommodations are in place.

  • Document the Return Process: Keep a record of all communications and decisions related to the employee’s return, including any requests for accommodations or changes to their position.

Termination After FMLA Exhaustion

When an employee exhausts their FMLA leave and cannot return to work, termination may be a lawful option. However, termination must be handled carefully to comply with legal requirements and avoid potential claims. Generally speaking, termination is only lawful in two scenarios:

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  1. FMLA Protections Expired: If an employee has used all their FMLA leave and no other legal protections apply, their employer is no longer obligated to keep their job open.

  2. No ADA Accommodations Available: If the employee has a condition that qualifies as a disability under the ADA, employers must consider reasonable accommodations. If no reasonable accommodations can be made, or if the accommodations would cause undue hardship for the employer, termination is lawful.

 

If termination is lawful, the employer must notify the employee in writing. The formal letter should clearly explain the reasons for the termination, including the exhaustion of FMLA leave and the lack of available accommodations, if applicable.

Drafting an FMLA Exhaustion Letter

When an employee’s FMLA leave is exhausted, it is important for employers to send a clear, formal letter acknowledging this. An exhaustion letter should be formal, respectful, and clearly worded. Important components of a clear and compliant FMLA exhaustion letter are:

 

  1. Acknowledgement of Leave Exhaustion: Clearly state that the employee has used their entire FMLA leave entitlement and note the date that the leave expired.

  2. Next Steps: If the employee is expected to return to work, provide the return date. If the employee is unable to return, discuss potential accommodations under the ADA or other relevant options. If termination is being considered, explain the process clearly and professionally.

  3. Benefits Post-FMLA: Outline any benefits the employee may still be entitled to, such as health coverage under COBRA or unused paid time off (PTO). Provide information on how the employee can access these benefits.

Sample FMLA Exhaustion Letter

[Company Letterhead]
[Date]


[Employee’s Name]
[Employee’s Address]


Dear [Employee’s Name],


This letter is to formally notify you that your Family and Medical Leave Act (FMLA) leave has been fully exhausted as of [date]. As a result, your FMLA-protected leave has ended.

 

Next Steps

Please be advised that you are expected to return to work on [return date] in your current position as [job title]. If you are unable to return to work or require further accommodations due to a medical condition, please contact Human Resources as soon as possible to discuss potential accommodations under the Americans with Disabilities Act (ADA).

 

Benefits Information

If you do not return to work, you may be eligible to continue your health insurance coverage under COBRA. Additionally, if you have accrued paid time off (PTO) or other benefits, those will be handled in accordance with our company policies. Please contact our HR department to discuss any questions you may have regarding your benefits.

 

We look forward to your return to work. Please do not hesitate to reach out if you have any concerns or questions regarding this process.


Sincerely,
[Your Name]
[Your Title]
[Company Name]
[Contact Information]

Documentation and Legal Protection

It is important for employers to keep detailed documentation when handling FMLA leave, especially after the leave is exhausted. Maintaining accurate records prepares employers to defend their actions if a legal issue arises, such as claims of wrongful termination or discrimination.

 

  • Maintain a Record of All Communications: Document every communication with the employee regarding their FMLA leave, including the initial leave requests, approval notices, and updates on the employee’s return-to-work status. Record any discussions about potential accommodations or extensions of leave, including written requests and verbal agreements.

  • Track Key Dates: Make sure that all FMLA-related dates are accurately recorded. This includes the state and end dates of FMLA leave, any intermittent leave taken, and the date the employee’s leave was exhausted. These records are essential for tracking compliance with FMLA guidelines and for managing the next steps after exhaustion.

  • Document Discussions of ADA Accommodations: If the employee requests accommodations after FMLA exhaustion, document the entire interactive process under the ADA. Record any accommodations discussed, those offered, and whether the employee accepted or denied them.

  • Store Medical Documentation Securely: Store all medical documentation provided by the employee confidentially and separately from the employee’s general personnel file. Medical records must be handled with care to protect the employee’s privacy and avoid HIPAA or other violations.

  • Record Termination or Return-to-Work Decisions: If the employee does not return to work, document the reasons for termination, including any efforts to accommodate the employee before termination was considered. For employees returning to work, document the return date and any modifications made to their position, duties, or schedule.

 

Proper documentation serves as a great defense in the event of legal disputes related to FMLA or ADA. Well-organized records demonstrate that you followed legally processes and acted in good faith. It is important that all documentation is consistent across all employees to prevent claims of unequal treatment or discrimination.

The Importance of Hiring an Attorney

When an employee has exhausted FMLA leave, remaining compliant with FMLA regulations and all other relevant laws, such as the ADA, can be a complex task for employers. Bringing in an experienced employment attorney can help your company work through the process and significantly reduce the risk of costly litigation. Hiring an attorney is essential for many reasons:

 

  • Expert Legal Guidance: An attorney provides clear advice on whether termination or other actions are legally permitted after FMLA leave is exhausted.

  •  Reducing Legal Risks: Employment attorneys assist employers in understanding overlapping legal obligations, such as those imposed by the ADA, state-specific leave laws, and anti-discrimination statutes. They also review all company policies, actions, and communications for compliance.

  • Tailored Solutions for Complex Cases: Every employee situation is unique. Attorneys offer solutions for complex cases where FMLA exhaustion overlaps with other legal protections, like long-term disability or workers’ compensation.

  • Defense Against Litigation: If a dispute arises after FMLA is exhausted, an attorney represents the employer, building a strong defense based on documented actions and legal compliance. Legal counsel prepares your company to handle potential lawsuits related to wrongful termination, retaliation, and discrimination.

 

Conn Maciel Carey’s national Labor & Employment Practice Group represents employers in all aspects of the employment relationship. If you need guidance for creating an FMLA exhaustion letter, managing FMLA exhaustion, navigating ADA accommodations, or handling return-to-work policies, our team is here to help you ensure compliance and minimize legal risks. Call us today at (202) 715-6244 to learn more.

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