FMLA to Terminated

Don D

I had an employee on 12 weeks FMLA who exhausted that first week in January. I had been telling him along that he must continue to provide us with a monthly update from his doctor (psychiatrist). Some of the notifications were written and some verbal over the phone. I also had him barred from the facility after we became somewhat concerned about his pacing in the lobby, then going out and opening his trunk. He was seeing a shrink and diagnosed as Bi-polar, rage syndrome and unable to communicate with fellow workers. This is a union plant and he is in the plant. He admitted to me that he took 15 pain pills and had a morphine injection within 10 hours of reporting to work one day, so I sent him home. Long story short, he never would cooperate with the program set up by the Psych who treated him, he refused to pay a nominal charge for the State Clinic to see him, he refused to provide the company with any updates. Our short term disability program TPA closed his case for non cooperation of the same sort. Two weeks ago, I sent him a certified letter advising that he was terminated since his FMLA had ended a month ago and he had not cooperated or followed our instructions. I carefully stated to him that he was not on any sort of approved leave of absence. This removed his union protection given to those who ARE on LOA. Simply put, he exhausted FMLA, never provided an assessment of his medical situation, never requested an accomodation or raised a disability issue. My concern at termination was whether ADA has been violated. He says now he is suing the company and the union (for non-representation). The attorney we consulted felt I was on safe ground to terminate. What think Ye?

Margaret Morford

I think it is rare for a union to fail to represent one of its members, which would indicate that you've done the right thing.

I think that you are a whole lot better off with this person outside your company making trouble and not inside.

I think that you may have dodged some very expensive litigation by not retaining an employee that shows a propensity for violence.

I also think you should contact an employment attorney about the advisibility of sending him a certified letter telling him that he may not come on the premises, and that if he does, he will be arrested for trespassing and/or about getting a temporary restraining order.

I think you "done good" regardless of what happens with his lawsuit.

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

Theresa Gegen TX

I agree with Margaret!