This situation could effectively be like a continuous leave if the leave is at the outer end of the frequency and duration provided by the doctor. It could, however, also be an intermittent leave if it is at the lower end of the range provided.

The FMLA does not contain an undue hardship exception like the ADA which can make these scenarios challenging. The FMLA regulations do state that if an employee needs intermittent leave or leave on a reduced leave schedule that is foreseeable based on planned medical treatment, the employer may require the employee to transfer temporarily — during the period that the intermittent or reduced leave schedule is required — to an available alternative position for which the employee is qualified and which better accommodates recurring periods of leave than does the employee’s regular position. This is only available for intermittent or reduced schedule leaves that are foreseeable. Once the employee exhausts their FMLA leave entitlement, additional leave should be evaluated under the ADA to determine whether the leave can be accommodated without creating an undue hardship.