Once an employee's 12-week FMLA leave is exhausted, the employer's obligation to provide additional assistance may not be over. Under the Americans with Disabilities Act, the employer may be obligated to provide reasonable accommodations beyond FMLA leave to allow the employee to return to work. However, as demonstrated in an unpublished Tenth Circuit Court of Appeals decision last month, this obligation is not open-ended.

In Valdez v. McGill, the plaintiff received treatments for colon cancer, and was terminated for absenteeism when he was unable to return to work following exhaustion of FMLA leave. He alleged that the termination violated the ADA because the employer failed to accommodate him. He offered three possible accommodations: working from home, transfer to a different position or an extended leave of absence.

The Tenth Circuit affirmed summary judgment for the employer, concluding that the employee was not a qualified protected employee under the ADA, because he could not perform the essential functions of the job, even with accommodations. The working from home request was not an option, because the plaintiff was a warehouse supervisor, and simply could not perform the job from a remote location. He was never able to identify a vacant available position that would have met his medical restrictions. Finally, the plaintiff had requested a string of leave extensions, none of which provided any firm belief that he would be able to return to work after the expiration of the next request.

The Tenth Circuit never reached the issue of whether the requested accommodations were reasonable or not. Even if provided, the court concluded that they would not have allowed the plaintiff to perform the essential functions of his job. Employers facing similar situations should carefully document their accommodation consideration process, including their review of possible accommodations, and whether such accommodations would actually result in the employee being able to perform the job.