Terminate Before FMLA Ends?

PatInCo

An employee is on unpaid leave. She is expected to return around July 17. In the meantime, her supervisor discovers that she has told co-workers and other non-employees that she is not planning on returning to work. Our policy allows her to request up to one month of paid sick leave (donated by employees) but if policy was abused or one is resigning, the time can be denied.

Can we ask her if she is planning on returning to work? If "no" is her answer, can we ask her to submit her resignation and that it be effective immediately? We know that if she says she is planning on returning to work, she'll get the one month of pay and we can forget about collecting it if she ends up resigning.

Hatchetman

Is this really FMLA leave? Or something else?

There is no prohibition in gneeral about inquiring if the empllyee plans to return to work. You can identify that information had reached you that she was planning to quit and that since was on unpaid leave and tohelp plan for the work of the company, does SHE have any palns for quitting. It's just an inquiry.

If she says, "no", then move on.

If she says "yes", then you can find out if she's willing to quit now. If she is fine.

If this isn't FMLA or other "protected leave" and she isn't willing to quit now nore willing to retun to work at that point, you could terminate, if she's at will and the leave isn't "protected" in some manner

But then you'd probably be paying UI for a discharge rather than a voluntary resignation.

If it goes to UI, you could argue that the purpose of leave is to allow an employee to resolve whatever issue that is requiring the employee's TEMPORARY absence from work with the EXPECTATION tht the employee is going to be returning to work (unless the leave is pending the emplyee's retirement or something like that). That's what leave is -- a limited duration of absence.

I assume you would do this with any employee for whom you received "resonable" word the he or she is planning to quit.

If this is FMLA or other legally protected leave, don't push the "either or scenario." Drop it.

LFernandes

Is this employee eligible for FMLA? Has she worked the required 1250 hours and 12 months (remember the 12 months need not be consecutive). Has she given a reason for her leave of absence i.e.; birth or adoption of a child, care for a sick spouse, child or parent or for her own serious health condition and provided the Medical Certification Form? If the answer is yes, then my question is did you designate it in writing to her that it is an FMLA qualifying leave.

Without more information, the leave almost sounds as if she is on a personal leave of absence not FMLA. If it is, how you handle the leave would depend on your policy for personal leaves.

As you know, FMLA allows an eligible employee up to 12 work weeks of unpaid leave during a 12 month period for the purposes I mentioned above. During that time you can require her to give you periodic updates on her status. If during that time she informs you that she is not coming back, you can terminate her employment. But she can wait until the last day of her leave to let you know. She isn?t required under FMLA to let you know before her 12 weeks of leave is up.

You mention denying the leave if you know that an employee is resigning.
Any employee who interferes with or denies any rights provided to an employee under FMLA is liable for damages. This includes supervisors. The act defines "employer" as anyone engaged in commerce or affecting commerce and who employs at least 50 individuals within a geographic area of 75 miles. The definition also includes "any person who acts, directly or indirectly, in the interest of an employer."

I wouldn't push the issue with her but I would definately designate the leave one way or the other either FMLA or a Non-FMLA Personal Leave and make sure that you have notified her of her rights in writing.

Margaret Morford

I suggest to all my clients that they enact a well-publicized practice of not terminating any employee's FMLA if they inform the company they are not returning after their FMLA runs out. You only encourage employees not to share their future plans with you and to keep you hanging out until the last minute when they tell you they aren't returning the day before they are scheduled to return. Instead, tell employees that regardless of whether they tell you they plan to return or not, you will give them whatever FLMA they are entitled to. For example, if an employee tells you she is not going to return after she has her child, you permit her to take whatever she would be entitled to under FMLA and make her termination date the day she would have been required to return. You at least find out early enough to begin looking for, and training, a replacement rather than getting caught empty handed with no notice.

Margaret Morford
theHRedge
615-371-8200
[email]mmorford@mleesmith.com[/email]
[url]http://www.thehredge.net[/url]