Terminate W/O Notice After One Year????

njjel

One of our administrative staff has been out on disability for what will be a year very shortly. It has been determined that she will not be able to return to work as she is still hospitalized. The Director wishes to end her employment effective with her one year of being out on disability. Are we required to give her any type of advance notice (like 2 weeks) of her termination - i.e. send a letter that states "If you are unable to return to work by 4/1/03 we are unable to continue to hold your position....etc." We have no written policy governing this type of situation. So what we do here could set a precedent. (Yes, I know we should have one, but unfortunately, at this time we do not.) We have not received any medical updates from her physician in many months, but are aware that she is still hospitalized. Your comments are invited!

Don D

[font size="1" color="#FF0000"]LAST EDITED ON 03-05-03 AT 12:15PM (CST)[/font][p]njjel: your post mentions that she is 'out on disability', and that 'it has been determined that she will not be able to return', and that you 'have not received medical updates in many months'. That's all a pretty curious package. Obviously she must be able to work to be ADA covered; but, I would proceed more cautiously than your CEO suggests. I think a comprehensive letter from you to her, certified mail, is in order. You would be wise to remind her that you had earlier requested regular medical updates and have not gotten them. As you suggest, I think it should mention your understanding of her situation as well as the company's intention to fill the position are both in order. I would not use the word terminate, but would not leave her assuming she is still somehow considered employed after a certain date (a minimum suggested of 10 days from date of mailing).

Naturally, your letter is being written as much for a future attorney to read (and club you with) and perhaps a hearing officer, as it is for her benefit.

Whatever

I apologize in advance because I know I will sound sarcastic, but, you have an employee who has been out on disability for a year, for which you haven't gotten medical proof in many months, you have no written policy and you are afraid of setting a precedent. Hasn't anyone ever gotten sick before at your company? At this point, I would discuss with the director what they want co. policy to be and I would talk to an attorney because the precedent has already been set.

njjel

I concur with both responses, and thank you for your input. However, my immediate concern is are we required to give her any advance notice of termination by any regulation you all know of? (I have been trying to get written policies and procedures in place for years, but thus far, as I'm sure many of you have also experienced, it's been to no avail.)

Whatever

I would talk to an attorney. The issues are complicated. When you terminate(with or without notice) can the ee now ask for a FMLA leave? If yes, what is your FMLA policy? Or, is it possible that the ee could interpret this sudden termination as being retribution for being hospitalized? I could go on and on. But it all leads to the same pitfalls. The issue is not the amount of notice, but the best way to get out of this mess.
The only good that can come out of this situation is that the director will realize the importance of written policy.

njjel

The good of this is that she was placed on FMLA in the beginning and has of course used up all of that time and much more.

Judith

Don't get too excited that you have already given your ee FMLA -- if it has been a year remember the ee may be entitled to FMLA again. This would be a good scenario to use to get that policy approved-- you may show them the potential costs of not having a policy.

Don D

Good point Judith. But, I'm betting she hasn't worked the required number of hours in the past 12 months. Sounds like a real good case for in depth analysis and a good case for firm, written policies. But, do all your analysis first, type it and present it to your attorney so he won't bill you for the hour he will spend telling you to do that. Two hundred bucks here and there and the first thing you know, the HR guy has justified his position. As I like to say to my boss, "I'm not costing you guys a cent. I'm saving you millions."

Pork

Nijel: E-mail me and I can provide you with attachments that might help you get beyond the CEO with written policy. Alot of CEOs do not understand the neccesity of policy and precedent handling personnel issues. We professional HRs do, and know how to present solutions to personnel issues. Cost to develop policy and employee handbooks, which can and in many cases is your published policy, are normally the CEO's concerns! Additionally, they have been led to believe and in some cases it really works "to go without written policy". Once you have written policy the policy is only as good as your consistant use of the policy. The difference in the two is "history" and "consistency" in handling case after case in the same manner. "Precedents of action" sets policy in the court of law, therefore, policy is written for your company in the findings of the judicial system. Question for your CEO is does he/she want the courts to write company policy or should he allow you to do it? (I can help you here with an e-mail to me, you should unblock your Hrero profile, so we members of this forum and communicate directly off-line!) Your efforts in this process will save the company lots of money! If you are in an "at will" state you can cancel your employer/employee relationship for any reason and at any time! However, here is where the rub comes: Did you discriminate in your decision to terminate this employee? Female, sick, ADA, FMLA, race are catagories that jump out at me from where I sit. Your policy is already written disabled employees can always expect to have a year + or more out on sick leave. You don't have any policy on which you can defend your position!!!

To get out of this situation I strongly suggest you go to the CEO's favor-ate attorney that has employer/employee experience AND PUT TOGETHER A PLAN OF ACTION; he will insist that you write a letter of concern and explanation for action on a attendance issue.

Who has been paying for all of this medical attention? She must not be covered by your company medical plan or else this would have come to a "head" much sooner!

Hi every one I am back things got busy around her and kept me out of the office so I could not even get to read the actions here! Good luck NIJEL

WOCO Frank

Out of curiosity, why was the employee not terminated when FMLA was exhausted?

njjel

We have no policy that states they will be terminated at the end of FMLA leave. Therefore the door is wide open!

Don D

We should look at FMLA as a parenthetical footnote in the middle of our attendance policies. Nothing more. Sort of a 'time out' that pops up in the middle of the policy, during which time the ee is protected. After it ends, it ends. You need not have a written policy stating you will terminate at the end of FMLA. Having no such policy does not preclude termination. Just fall back to your normal policy.

njjel

Ha! "Normal" policy? There is none! That is part of the difficulty, but I'm working on it!

WOCO Frank

You don't have an attendance policy? Essentially, this person has missed (and continues to miss) work without a valid excuse. You do not need a special policy just because it involved FMLA at one point.

WOCO Frank

Let me clarify my last post, since it was very poorly worded. By "valid", I meant an excuse that compels you legally to maintain her employment. Obviously, being in the hospital is a normally accepted excuse - it isn't necessarily a shield against termination.

Keep in mind, though, that in most states I this will probably not let you off the hook for unemployment.

njjel

Oh she has a valid excuse. She is still hospitalized. And no, we have no written attendance policy for the administration staff!

valentine

Nigel I am curious. Do you have an employee handbook? How many employees do you have? In this day and age as others have said it is very costly to go without any formal policies.

We have a policy in our handbook that says once the person has used up their short term disability and they cannot return to work then they are automatically terminated. Of course, if its serious long term disability will kick in for us. I send them a letter to that effect.

When she went out did she fill out any paperwork that said how long she would be out or how was she granted the leave?

Do you have a short/long term policy?

Valentine

njjel

When she went out it was understood that it would be for a period of six months. We have no formal policy. She was placed on FMLA and of course that has expired. She is still unable to return to work.

Balloonman

Just send a letter stating that effective x date, her employment with the company has been terminated. You can always throw in language that if she in the future recovers, and is able to work again she can apply for positions that may come open. A year is long enough.
My $0.02 worth.
DJ The Balloonman

valentine

I agree with balloonman. Since it was understood she would be out for six months and the FMLA has expired you have the right to terminate her. When I first took over HR there was an employee who had been out for a year. There was no formal termination policy so I spoke with our attorneys. Because their FMLA had expired, as well as the short term disability, and the employee still wasn't able to work I had the option to send her a letter terminating her employment, of course, giving the option that she could re-apply for employment in the future if able. It was highly recommended that I put a policy in place to address this situation which I did.

Valentine