Resignation and THEN FML?

crawfod

We had a long term employee who gave written notice on 12/9/04 of his retirement to be effective on 1/6/05, which was accepted, and replacement proceedings were begun. On 12/30/04 he had hernia surgery and asked his department head if he could delay his separation date until 1/26/05 when he expected to be medically released, which we granted. He is eligible for sick leave pay plus keeps the health insurance going. Now he is still not released and doesn't have another appointment until 2/22/05. It's not a big deal, because we've already filled his position, and he truly plans on not returning, but my question is: If an employee gives notice of resigning and THEN incurs a disability before that date, what are our obligations for FML? I'm familiar with the rule about their intent to return but that seems to apply to those already on FML. When I called the DOL they said that was a new twist for them and they would have to call me back. No answer yet. What do you guys think?

HRinFL

I think you can look at it from two perspectives. The first, the ee clearly does not have any intent to return; therefore, you do not have any liability to place him on FMLA. Currently on FMLA or not, since there is no intent to return to work, I do not see how you can be liable for denying the request of an ee that has already tendered his resignation (personally, I would have explained when he requested the extension that the decision had been made, paid him any sick time he was eligible for and inform him of his COBRA rights, but you are more generous than I am).

The other viewpoint is that the FMLA says that an ee must initiate a request for FMLA benefits. As HR, we routinely identify FMLA qualifying reasons ees are out of work and proactively send/give the necessary paperwork to them (to reduce liability). The benefit to the employer - we get to start the clock. We can also run concurrently with other leaves (such as W/C) - again a benefit to the employer limiting the time an ee can take off from work for the same condition. However, in situations like this, I think you have an argument that the ee did not seek to have the leave qualify under FMLA; therefore, you are not liable. An ee has the responsibility to initiate dialogue concerning his or her rights under FMLA, not the employer. I am interested in what the DOL comes back with. Let us know!

P.S. Probably not realistic, but what happens if you grant FMLA leave (retro to the start of the condition) and the ee decides, I guess I really want to keep my job? Now he has protection under the FMLA that secures his job while on leave. Since his job is filled, you would either have to bring him back in his previous role, or find an equitable position within your organization. Wouldn't that be something!

marc

When you granted the extension, was it in writing? If so, was it until 1/26 or did you specifiy the medical release as an event which determined the new release date?

Assuming you did not specifiy the medical release as the determining factor, seems to me that 1/26 was the new seperation date. You accepted his resignation, the date has come and gone. With respect to health insurance, he has full Cobra rights now - which will protect him well past a normal hernia recovery period.

Take the administrative steps you would have originally taken on 1/6/05.

CRS8383

First, I wanted to commend you on your willingness to take care of a long term employee. Sometimes, in this lawsuit happy environment we get too caught up in CYA that we lose focus on taking care of our people. It is an all to frequent story of the shock an employee goes through when they find out how much COBRA costs.

Second, I would hesitate calling the leave FMLA. Maybe an alternative would be to visit with the employee, explain that you need to go ahead and complete the process of his resignation/retirement, and if you and your company still feel support is necessary offer a retirement/severance package that will cover a month or two of COBRA payments. This should be viewed very positive by the employee and you get a release in turn for your kindness.

crawfod

Sorry for not replying sooner, but I wanted to hear from the DOL. Their opinion was that a written resignation PRIOR to an FML request would be grounds to deny the leave. However, they could not give me a written statute to back that up. They agreed that the "no intent to return" rule was designed for those already on FML, not before.

Our attorney said it would have been better to have denied him the extension in the first place, if we had to do it over again. Our next options now were to ask him for another letter of resignation or make sure this 2/22/05 date is the end. The Department Head decided to let it go until the 2/22/05 date. Again, this is a Fire Lieutenant with 27 years service who will be 66 in June. He's already Medicare eligible, so he won't need COBRA for himself. He's still drawing 100% Sick Leave pay, but he would have been entitled to a 50% payout anyway. It's true he's benefitting from still being on our Medical Plan in that we pay for the majority of the premium, but we would have had to pay for January anyway, so it's just one month. His surgery expenses would have been covered no matter what since that was 12/30/04.

All in all we could have done things differently, but as long as he doesn't want more time, this will go down peacefully and he can be retired with good feelings all around. If he does ask again we're able to say we've done this twice, and it's time to wrap this up.

For the future we've learned that when we get a letter of resignation, we should acknowledge that letter with a written acceptance and perhaps state something along the lines of "no matter what happens", the resignation date is firm, and only by our grace will anything change that. (A good employee who gives notice and then changes his/her mind and wants to stay should be reconsidered, depending upon circumstanes, but a medical disability might not.)

CRS8383

If you have access to the SHRM website there is an article that sounds similar to your situation. Here is the title of the article.

Court Report: FMLA Approval May Prevent Later Challenge

crawfod

Thanks, CRS8383, but I don't have access to that website. I have a fax # 615-451-5918, or my email address is [email]dave.crawford@gallatin-tn.gov[/email], but don't feel you have to go to such trouble.

CRS8383

It is on its way, via email.