FMLA question

crawfod

Another City told me they had an employee who has been off on FMLA for about 4 weeks and has now informed them that his disability is permanent. When I asked if he had said he was therefore resigning, the answer was, "Not literally". I pulled up the below FMLA standard. The word "unequivocally" means "Admitting of no doubt or misunderstanding; clear and unambiguous".

My immediate reaction is that they need to get him to formally announce his intention not to return to work. Then terminate him. But suppose he doesn't want to do that (due to continuation of benefits, health insurance, etc) and wants to stay employed until his 12 weeks is up (maybe a miracle will occur and his disability will be solved). What recourses does the employer have then? Any suggestions or similar experiences?

"(e) An employer may require an employee on FMLA leave to report periodically on the employee's status and intention to return to work.
(See Sec. 825.309.) If an employee unequivocally advises the employer either before or during the taking of leave that the employee does not
intend to return to work, and the employment relationship is terminated, the employee's entitlement to continued leave, maintenance of health benefits, and restoration ceases unless the employment relationship continues, for example, by the employee remaining on paid leave. An employee may not be required to take more leave than necessary to address the circumstances for which leave was taken. If the employee is able to return to work earlier than anticipated, the employee shall provide the employer two business days notice where feasible; the employer is required to restore the employee once such notice is given, or where such prior notice was not feasible."

Geno

Not sure what your question is, but if it is "What recourses does the employer have then?" then you've answered your own question.

Unless the employee unequivocally and unambiguously declares his/her intention not to return to work -- not much.

My question is, why be in such a hurry to terminate someone who may well be on the disability track?

Ask yourself this question: would you (personally) terminate your employment situation (and whatever benefits may go along with it) two months early if you didn't have to? There's your answer.



Geno

crawfod

Geno, my heart agrees with your sentiments. However, technically speaking, the employer would be paying health insurance premiums, vacation, sick leave accruals and other benefits, perhaps dealing with replacement issues, etc., so there is a cost factor for each employer to consider.

How does one handle a female employee who announces her plans to stay home with her newborn baby? Is she counseled to stay on FMLA for 12 weeks so she gains the benefits at the employer's expense?

Personally speaking? 100% sure that I would not be able to return to work? Yeah, I'd resign. To pretend that I may return and thus my continued absence causing hardship on my co-workers, department, and employer wouldn't be right, to me at least.

Geno

crawfod,

I'm a little slow this morning, I thought we started out talking about a male who temporarily left work on FMLA and now has telegraphed the notion that he may not return to work, i.e., permanently disabled. Now we have a “female employee who announces her plans to stay home with her newborn baby.” But, you know what – it doesn’t matter – you need not “counsel” the employee one way or the other. Remain as impartial as humanly possible and explain to the employee how FMLA is administered under a variety of circumstances. If it will make you feel any better, you can take the opportunity to inform the expectant mother that the employer may (under certain circumstances – see 825.213 for details) recover its share of health plan premiums during the leave period if the employee fails to return to work after the employee’s FMLA leave entitlement has been exhausted.

As you can see, FMLA (as written) does not administer itself. It is always advisable to ponder as many anomaly scenarios as possible in advance and develop a policy/action plan for each that dove-tails into the particular employer’s existing policies, procedures, and most importantly, philosophy.

Sentiments aside, consistency is the key to these types of situations – what you do today; you may well have to do tomorrow.

Geno, SPHR

Don D

To answer your question; there is not a thing the employer can do in a situation where the employee has announced his/her intention to return to work, yet the employer hears/suspects/dreams otherwise. It's the employee who has control of the announcement to not return. The employer would be making a large mistake to act on assumptions or rumor or even inuendo based on a phone conversation with him/her. And another mistake would be in 'counseling' the employee to do either in self-interest of benefits protection. That's not the kind of employee counsel I'd want to defend.

I have personal experience with the termination of a new mother, out on FMLA, who verbally mentioned not coming back, was terminated, then when she realized the ramifications announced that her intention all along was to return.

Dry, cold egg on one's face is not particularly tasty.

Don D. (sansSPHR)