FMLA Expiring -- Okay to Post?

CCH1400

We have an employee whose FMLA entitlement for 16 weeks (CT)will expire on March 21. We have paperwork from her doctor that states her target date for returning to work is April 14, 2005. I sent her a letter informing her of the end of her leave and that if she did not return on March 22 we would have to terminate her and post her position. My question is: Can we post her position now? She has been speaking to her supervisor but has been vague as to whether or not she will return on March 22 even though we have the paperwork to support her inability to return. Any thoughts?

As always, thanks for any input.

HRinFL

I don't know of anything specifically saying that you cannot do this, but I would not recommend it. I would wait until the leave expired to post the position just to eliminate any possibility of a misunderstanding about the company's intentions or that you would not let the ee return to work when the leave expired. Since she has been out for 16 weeks and, I am assuming here, you have not had a vital need for someone in that position during the course of her leave, it won't hurt to wait a few more weeks before posting. BTW, why did the ee get 16 weeks of FMLA? Is this something unique to CT? Is this a state mandated leave in excess of FMLA?

CCH1400

The ee used 30 days last summer and will have used 50 days in 2005. CT law states 12 weeks in a 12 month period or up to 16 weeks in a two year period. When the ee first went out, due to a car accident, we thought she would be back sooner. She works first shift and her absence has become a hardship for her department; mandatory overtime for other staff.

marc

Sure, you can advertise and even hire. But if the EE does return, you must reinstate her to the same or equivalent job. So there is your risk - you may have two people for the same job, and one with superior rights to it.

CCH1400

Thank you both for your input. My gut feeling was not to post but everybody is anxious because of their budgets. The thing is, this is an ee that they would rehire so I don't see why they just don't extend her time for an additional 3 weeks plus. They are not going to get someone in here, oriented and trained by April 14. They have made exceptions in the past when ees went beyond their 16 weeks. But, I do not have the final say so have to go with the powers that be.

HRinFL

They have made exception in the past is new information that to me, would be troublesome. What is different about this ee that they do not want to make an exception for her?

I would explain that because they have made past exceptions, if they move forward, they could expose the company to additional liability. Your argument is their own lack of consistency with the policy. Unless there are distinguishable differences in those situations, I would be reluctant to pull the trigger. Any of the ees that received additional time in the same or similar position as this ee? Can you show that exceptions did not create a hardship and this one would? I would guess when these other ees were out, other ees had to pick up their slack.

pork1

CCH1400: I would not do anything until the termination date. Regardless of any other discussions your letter and date set is the fact sheet on which you will act. The deadline set is when the race to replace begins. The effected ee has the right to walk in with the letter of full release and go back to work on that day, which ends (in our case at 5PM, always)all previous guarantees.

PORK

Whatever

Would holding the job open be considered a reasonable accomodation under ADA?

CCH1400

We are a residential facility for kids with emotional issues, learning disabilities, physical or sexual abuse and substance abuse. The ee has to be able to participate in a restraint, if necessary, so they must return to work without any restrictions.

Gillian3

ADA may or may not be an issue, because something that qualifies for FMLA may not be something that is protected by ADA. If does though, just saying that she can't work with restrictions because ----isn't enough to get by the ADA issue. That requires interactive communication with the employee to see if an accomodation can be made. Maybe it can't but you need the documentation to show that you went through the process to protenct your company if it becomes an ADA issue at a later date.

CCH1400

> Maybe it can't but you need the documentation to show that you went through the process to protenct your company if it becomes an ADA issue at a later date.


This ee has not claimed any disability nor has she requested a reasonable accommodation.

We do have a two week personal leave of absence policy. Nobody thought of it and she did not ask for it. They could have denied it anyway but that's good to remember for the future.

KathyHR

We had a similar situation but we did not want to keep the employee. We sent a letter informing her when FMLA would expire and that when leave expired we would terminate (our attorney drafted a great letter). She did not take advantage of our unpaid leave of absence policy (I guess she forgot about it & we didn't remind her) so we terminated. If you have a leave of absence, and she asks for it, you could grant it for the 3 weeks. That way you could keep a good employee & not set a precedent of extending FMLA.

Good Luck, Kathy