One of the situations you might find yourself in, after being off work due to extended medical leave / disability leave under ADA / FMLA, especially if you work for a State or County agency, is being presented with the so-call employers’s options letter by your HR department. In that letter, the employer will likely communicate you to you that they are unable to hold your position open. And due to the fact that you are still not released to return work, the employer presents you with the the following options: (a) you can medically retire; or (b) you can medically resign with the options of possibility re-applying and returning back to work; or (c) you can fill out the accommodation packet that the employer will provide to you, so that they can continue evaluating how else you can be accommodated, besides being out on leave.
If you are still unable to return to work, but you want to keep you job in this type of situation, it’s very important that you exercise the third option and fill out the accommodation paperwork, so that you continue engaging with the employer in the interactive process of looking for other possible solutions to your continuing medical condition. You should do this even if you think that there is nothing the employer can do to accommodate you except providing you with medical leave. You may not be aware of all the other solutions that the employer might be able to offer you, and it’s best to throw the accommodations ball back in the employers court, by providing them with the information that they are asking for.
One common mistake that an employee who is presented with the above options might make is resign, believing that he doesn’t have any other choice, since continuing to be on medical leave is the only effective accommodation that would work for him. Then he will attempt to file a claim against the employer for constructive termination. In this type of case, the employer will have one effective defense which in most cases will defeat this termination claim. The employer will argue that it’s the employee who caused the breakdown in the interactive process by refusing to fill out the accommodation packet. Therefore, its the employee who refused to continue working on possible solutions to his medical limitation, and therefore, the case should be dismissed.