Can We Terminate for Inadequate Notice?

Crout

We have an EE who calls in sick to her supervisor on Feb 2, and says that the doctor says she must have at least three weeks off. Her Supervisor tells her that she must get certain documents (leave request and physicians certifificate)from HR and fill them out. Two weeks go by. THe EE sends her son to HR and he picks up the forms. Two more weeks go by...now it's Feb 27, and we still have no documentation whatsoever from the EE, who is still out. This situation was just dumped in my lap, and I feel we should terminate. Does anyone have any problems with that course of action? Thank you very much.

ray a

According to my resource, it states the employee must return the FMLA documentation within a reasonable amount of time to their employer or FMLA time can be denied. Reasonable is defined as 15 days. Sounds like you could be on solid ground for termination. Be careful of extenuating or unusual circumstances.

Rockie

Since the paperwork was not returned in a reasonable amount of time (15 days), and you have heard nothing from the employee, I would consider this job abandonment. Because FMLA is such a precarious area of employment law - to protect yourself you may want to send a letter stating that the paperwork has previously been provided to her and you have not heard from her. If she does not contact you by such and such date, this will be considered job abandonment and she will be terminated.

LindaS

When you provided her with the paperwork did you inform her that she only had 15 days to return it? If not this is something you may want to do in the future but for this case, I agree with Rockie - send her a letter informing her that she has until ____ date to return the completed paperwork or to provide your office with a reasonable explanation why she is unable to (she might be in the hospital, etc.). If she fails, and make sure this is clear in the letter, terminate her. Employees have some responsibility to make sure their employers are kept abreast of the situation - it is not all on the employers shoulders.

ray a

Send the letter certified or registered so you have proof they received it.

I'm dealing with a case right now, where the employee did not return the required documentation timely. She is going through severe emotional problems including threatening suicide and is seeing a county mental health psycologist and getting other assistance. We decided even though we had a legal right to refuse FMLA approval, we did approve it and since we have had a legal right to terminate, we have not done so. Our reasoning is even though we had legal rights, we could also come across as uncaring jerks because of the nature of the problem.

Crout

Thank you all for your responses. The problem with making exceptions to any policy and/or the law is that you may then be expected to make exceptions for EVERY employee. In my case, I have received further information and it seems that the EE in question received the paperwork on Feb 7, and has been in contact with her direct supervisor several times since. She was told several times by her supervisor to stay in touch with HR, and get the paperwork in as soon as possible, although I do not believe that the 15-day deadline was mentioned. We are now on day-21, and she has made NO effort to contact the HR department. We have received no paperwork from her OR her doctor, have no idea what her problem is or when we can expect her return. To be honest, I am inclined to just advocate for a termination notice at this point without a "letter of last chance" because quite frankly I don't think we want her to return.

POPEYE

Be extremely careful. Make certain that the EE was fully aware of their responsibilities of reporting in a timely manner. We were informed recently by the DOL that the burden of proof concerning this lies totally on the employer. Even though you may have postings in the appropriate places, each time an EE even remotely suggests they may have a FMLA qualifying event, you MUST inform them in writing about their responsibilities and the consequences of not. Again, I speak from recent experience and I don't wish my experiences on anyone else.

Rockie

You are so right. FMLA is one area where decision makers and even the supervisor of an employee can be sued individually for denying employee FMLA rights or retaliating in any way against an employee who has exercised his FMLA rights. I believe there was a recent case where two supervisors were successfully sued and the complainant was awarded something in excess of $400,000 from each of the supervisors personally.

In cases of this nature, best to err on the side of caution and have all the documentation in place.

Crout

Su...su...supervisors can be personally liable?!?! Gulp! Well, that's a horse of a different color! That "letter of last chance" is looking better and better. Thank you.

mbeam

We used a similar case to the one referred to above (might be the same one) in a recent legal update session presented to our managers. It definitely was an eye opener when we indicated that not only was the plaintiff awarded $12 million from the former employer but the two supervisors were also held personally liable for $450,000 each.

The employer was a hospital and employee was a 25 year veteran (employee of the year in the prior year). He was terminated for not meeting production standards while on intermittant FMLA leave to care for seriously ill parents.

Tony Kessler

To read more about that case, click on the "National News" section (just to the left of this screen) and scroll down to the first FMLA headline -- "Jury awards nearly $12 million in FMLA case." Or here is a direct link: [url]www.hrhero.com/national/12million.shtml[/url]

Ruskanen

Keep in mind that the employee may be up to speed on laws concerning FMLA and is waiting for your company to screw up. It would be best to make clear to her what your expectations are, i.e. turn in paperwork by certain date or she will be terminated. If not, the second she sees you termed her without FMLA notice, she may make a quick phone call to her lawyer. If she's been gone this long, she may not even be interested in coming back.

Patti

This is what happened to us. An employee called in sick after 7 work days off. She was told about FMLA and sick benefits. Two weeks later all the information was sent to her last address. Maybe she got this, maybe not, but it was never returned. Almost 2 years later she applies for unemployment conpensation, and gets it because she was in jail.

Talk about extenuating circumstances! I believe this would not have happened, if the letter we sent was sent registered or certified, and we had explained about the 15 days limit.
Document, Document, Document, Document....