Rip this FMLA policy out of your employee handbook. And burn it with fire.

Employers that maintain a policy of treating any employee unable to return to work following the expiration of FMLA leave as having voluntarily resigned are begging for trouble.

But don’t just take my word for it.

According to a recent press release from the U.S. Equal Employment Opportunity Commission, the federal discrimination watchdog sued an employer that maintained and applied that policy and violated the Americans with Disabilities Act.

The EEOC claimed that “one disabled employee with pseudotumor cerebri requested a brief extension of leave until her new specialty contact lenses arrived. She explained the lenses would arrive within 30 days of her FMLA leave expiration date, possibly in as soon as three days. Another employee with severe anxiety and bipolar disorder requested 30 more days of unpaid leave and provided medical documentation supporting her request.”

But rather than accommodate, the company allegedly “refused to consider either request, instead terminating both employees pursuant to its policy.” Furthermore, the EEOC claims that the company “could have easily accommodated both employees. It did not hire replacements for either until months later – after both employees began working for new employers.”

We’re not talking about a situation here where the EEOC claims that the request for FMLA leave doubles as a request for accommodation under the ADA. Instead, each situation involves an employee who was on approved FMLA leave and, during that leave, requested a little additional leave as an ADA accommodation once the FMLA leave ended. In those situations, the EEOC’s position is that an employer must engage in an interactive process with an employee with a disability on leave who requests additional leave beyond that which the employer originally granted.

In some places, like the Seventh Circuit, the ADA does not require employers to give employees additional time off work after they exhaust FMLA leave. Elsewhere, however, your mileage may vary depending on how much additional leave employees request. The EEOC’s official position is that “compliance with the FMLA does not necessarily meet an employer’s obligation under the ADA, and the fact that any additional leave exceeds what is permitted under the FMLA, by itself, is not sufficient to show undue hardship.” Absent undue hardship, an employer must provide the additional leave as a reasonable accommodation.  Plus, state and local disability accommodation laws may raise the undue hardship bar even higher.

So, if you know an employer with a maximum leave policy, although it isn’t per se unlawful, remind them to tread carefully and allow exceptions for reasonable accommodations that do not create undue hardship for the business.