What are our options?

Sarah Q

We have an employee in TX out on FMLA to care for a dying parent. The employee has stopped communicating with us and I need to send her a letter confirming that her leave is up in 3 weeks and asking if she plans to return at that time. IF she doesn't return at that time what are our options? Are we able to fill her position? This employee was about to enter a probationary status just before she left and I want to make sure to cover all of my bases.

C Wilson

Do you require any vacation or PTO be taken con-currently with FML? If she has no other leave avaiable then you may terminate her. You have fulfilled your obligation under FMLA.

marc

It sounds like the original leave is a bit open-ended. In that case, I would send a certified letter indicating that the FML expires on such and such a date and that it is your expectation that the EE will return to work.

If the EE does not intend to return, then you have some other things to consider regarding the original granting of FML.

HRQ

We require PTO to be exhausted while on Leave so it's not an issue for us, but what if we didn't?

Having PTO in their bank doesn't necessarily mean they are entitled to additional leave after FML expires. (Does it?)

marc

Yes, they can use their leave beyond FML if you don't require it to be otherwise used. If they still have two weeks of sick leave when FML expires, then they get to use it. As for vacation, most companies have some discretion about approving it, so you have some wiggle room.

As to PTO, if they can use it for any reason and there is time in the bank, how would you prevent it if that is what you wanted to do?

HRQ

If their leave expires and they fail to return to work, they are no longer employed, therefore no rights to additional Leave.

If they DO return to work and have PTO (or whatever) still available, then it's up to the business whether or not to approve time-off requests, based on business needs.

Right?

I suppose then it comes down to whether or not, based on the employer's PTO plan, they are required to pay out unused PTO upon termination.

Because we require ee's to exhaust PTO while on Leave, and we limit PTO carryover from year to year, this hasn't been a concern. Still, I don't understand the "additional Leave" issue, unless we are calling vacations "leaves".

Forgive me for being dense today - it's been a long week and it's only half over.

NeedCoffee

I think you need to send her that letter certified mail/return receipt requested, and state that her leave is soon up, with instructions for the employee as to requests for extensions of FML (if applicable). If she still doesn't respond, leave runs out and she doesn't return, you should be OK to terminate.

davids

We usually send the employee a letter approximately two weeks prior to the FMLA being exhausted (based on using all 12 weeks) or expired (based on the time the physician certified the employee to be off). We don't ask the employee if (s)he is returning. We assume the employee is returning and say something to the effect of "we are looking forward to your returning on "X" date." If there was a change in schedule or shifts during the employee's absence, we would tell the employee to contact the supervisor to be told when to report.


If the employee does not return to work, you can terminate. Also, with few exceptions, you can also require the employee to repay the cost of health insurance premiums that you paid during the absence.

Beverlee

Our application for, and our employer response letter state clearly that an employee not returning may/will be treated as a resignation, unless (certain provisions). I have only had this happen once, but it was sufficient to deny UI benefits, and allowed us to recoup medical insurance premiums.