FMLA Longer Than 12 Weeks? Here’s What to Know

Last updated July 31, 2018.

Illness happens to nearly all of us — or to our spouses, children, or parents — over the course of our working lives. Further, some conditions like cancer, heart disease, and depression are recurring, with treatment requiring a series of temporary medical leaves. Fortunately, the federal Family and Medical Leave Act (the “FMLA”) requires businesses that employ fifty (50) or more workers to provide workers with 12 weeks of unpaid medical leave per year to attend to a serious health condition for themselves or an immediate family member (spouses, children and parents).

The FMLA allows employers to define a “year” for leave purposes in different ways. For example, some employers calculate a year on a calendar basis, while others use a “rolling” basis.

Regardless of how your employer calculates a year, let’s assume that you’ve nearly exhausted all 12 weeks of your FMLA leave. Let’s also assume that your serious health condition requires that you take more leave — whether a few more days, weeks, or even months. With your leave about to expire, can you request additional unpaid leave from your employer without getting fired? In other words, can you get more than 12 weeks of FMLA leave?

The answer to this question is very fact-specific and dependent upon the circumstances. However, even though there is no hard-line rule, the language of the New Jersey Law Against Discrimination (the “NJLAD”), as well as recent court decisions, indicate that extra leave very often qualifies as a “reasonable accommodation” of an employee’s disability, and therefore is legally required.

For this reason, and as discussed below, you should request additional leave from your employer as soon as possible after your physician indicates a need for it.

NJLAD Indicates Leaves of Absences are Reasonable Accommodations

Typically, employment cases that involve the denial of medical leave to workers are treated as disability discrimination claims under the NJLAD, also known as “failure to accommodate” claims. In order to sustain these claims in court, the aggrieved employee must show that (1) she was disabled within the meaning of the NJLAD; (2) she was qualified to perform the essential functions of the job, with or without a reasonable accommodation; and (3) she suffered an adverse employment action due to the lack of accommodation.

Let’s take a look at prong two of this test. Employers typically argue against providing additional unpaid leave beyond the 12 weeks of mandatory FMLA leave because an employee’s absenteeism poses an “undue hardship,” and therefore additional leave is not a “reasonable accommodation.”

However, in 2006, the New Jersey legislature amended the New Jersey Administrative Code to expressly name “leaves of absence” as an example of a reasonable accommodation under the NJLAD. N.J.A.C. 13:13-2.5(b)1.ii.

Moreover, the Code previously stated that the NJLAD only protects an employee who can “presently” perform the essential functions of her job with or without a reasonable accommodation. The use of the word “presently” indicated that a leave of absence was not reasonable, since it would not allow an employee to work in the “present” but rather in the future. However, also in 2006, the New Jersey legislature deleted the word “presently” from the Code, making it clear that leave of absences are — given the right circumstances — indeed reasonable accommodations.

New Jersey Courts Indicate Leave Beyond 12 Weeks is a Reasonable Accommodation

Even conceding that a leave of absence may be reasonable, employers argue that providing leave under FMLA longer than 12 weeks is “unreasonable” because it is too long and cumulative, amounts to requiring the employer to hold an employee’s job open, and therefore is unduly burdensome.

However, New Jersey courts have indicated that employers may not rely on the fact that they have already provided twelve weeks of FMLA leave as a justification for refusing to provide additional unpaid leave.

For example, in Brown v. Dunbar Armored, Inc., after exhausting his FMLA leave, the employee requested to return to light-duty work until he recovered from coronary bypass surgery. The court agreed with the employer that light-duty work was not a “reasonable accommodation,” given the requirements of the employee’s job (armored guard and driver charged with heavy lifting). The court did, however, agree with the employee that additional leave beyond the 12 weeks of FMLA leave — until the employee fully recovered and was fit to resume his original duties — would be reasonable.

The court stated: “The fact that the leave would occur after the exhaustion of leave under the FMLA does not make it unreasonable.” Put differently, the exhaustion of FMLA leave does not automatically make a request for additional leave unreasonable.

However, Courts May Decline Additional Leave as Reasonable

While a court may deem additional leave beyond FMLA leave to be warranted, a court may also decline to do so. As stated before, whether leave is “reasonable” and legally mandated is a fact-specific inquiry. For instance, the following circumstances may impact a court’s determination whether an absence beyond FMLA leave is required:

• What’s the size of the business? Are there other employees available to “fill in” for the employee requesting additional leave?
• Does the employee requesting additional leave have a specialized skill set that cannot be “covered,” and that is critical to the running of the employer’s business?
• Is the employee requesting a few additional days of leave or several months? Is the employee’s physician confident that she can return to work after the leave, or is the employee’s prognosis unclear?

The legal ramifications of medical leave can be confusing. If you would like to talk to a qualified employment attorney regarding the specifics of your leave situation and whether you can get more than 12 weeks of FMLA leave, call us today at 609-243-0300 or contact us online for a free consultation.

See also: 3 Big Mistakes to Avoid When It Comes to FMLA Leave