Scenario:

 A (NJ) employee was diagnosed with cancer. EE was out on FMLA for treatment. FMLA was exhausted. EE will not be eligible again until July 2009. EE will be going out again for another 6 weeks. 

Under normal circumstances we should terminate EE as FMLA is exhausted. I understand that we need to have procedures followed across the board; equal. For this particular EE there is the ADA to consider. Cancer is a disability under the ADA when it or its side effects substantially limit(s) one or more of a person's major life activities.  EE is going out for reconstructive surgery. Does this qualify? Because of the ADA we do not have to terminate?

We are concerned about following legal guidelines. Would the cancer/ADA be a safe zone for not terminating as we would if disability was not there? Compared to an EE who has exhausted FMLA and is not covered by the ADA.

 Can someone help me with this?  What are some of your termination policies with FMLA, ADA? Documentation?

Thank you.

You are right to be concerned about this. . . . it is most likely that the employee is also covered by the federal ADA (if your organization has more than 15 employees). In that case, you should talk reasonable accomodation. Leave (above and beyond FMLA leave) can be a reasonable accommodation so long as it does not place an undue burden on the employer's operations (this is an onerous test, so unless there really is a documented undue burden, I wouldn't advise using this as an exception). Six weeks of leave may or may not be reasonable. You should start a dialogue with the employee and her/his doctor to determine if the employee can return to work sooner with light duty or a modified schedule. Provide the doctor with information regarding the employee's job duties, hours and any physical requirements of the job (essential functions). Document all conversations, suggestions for accommodation and your own rationale for accepting/rejecting any accommodation. Godo luck!