Termination of FMLA eligibility

cherware

I'm new to this forum and I start out with a question.

I have an employee who will no longer be eligible for FMLA job protection as of 5/7/08. I'm certain he will not be able to return to work full or limited duty and, as of today, he has not requested an extension. In addition to the original notification he received when he was approved for FMLA, I would like to notify him that he is terminated after 5/7/08; however I want to make sure I'm using the correct verbage. Any ideas or resources I can tap into?

HRinVA

I assume you mean that the 12 weeks has expired? Does your company policy or state law require you to provide more than 12 weeks? W/C or ADA applicable?

Did you send the employee a FML notice at the beginning of the leave, telling him that the leave is designated as FML, and saying something like "If you return to work on or before the expiration of available FMLA leave, you will normally be returned to your former position or an equivalent job. If, however, you do not return prior to the expiration of FMLA leave, there is no guarantee of reinstatement." As you probably know, the Employer Response form is available on dol.gov

cherware

Thanks for responding,
Yes, the 12 weeks will expire tomorrow. WC or ADA are applicable.
I did send a certified letter that stated everything you mentioned above. I just thought it would be a good idea to follow up with a termination notice, as a matter of record. The letter would notify him that the employment relationship has been severed due to his failure to return to work, in any capacity, within the mandated amount of time. Is this a good idea, or should I just leave it as is, since he has not contacted me?

stilldazed

When you say that WC or ADA are applicable, do you mean that this is a workers' comp sitaution? Also, what is your company's policy on extending LOAs? Is there an anticipated RTW date in the foreseeable future? Is this your company's first situation like this, where an employee has used all 12 FMLA weeks and continues to be out on medical leave?

You can act promptly, but sometimes in FMLA situations it is a little better to act in phases. If it is a practice that is agreeable to your organization, one option might be to cancel insurance benefits, convert the person's status to part time, and continue the leave of absence for a short period of time to give yourself a chance to ensure current records are available for your company's decision making process. Legislative history in the FMLA describes it as something similar to FLSA in Congressional intent, that is that the requirements of FMLA are a minimum baseline from which employers should work in a manner similar to minimum wage.

By all means you should follow your company's policy and practice, but you can take some liberty with being a little more generous if that also fits within your company's employee practices. Cancelling insurance benefits would put an end to any costs your company might incur, and the absence of work hours would keep this worker's payroll expenditures at zero.

If it a w/c situation, look at your company's return to work policy under w/c. It's generally good for it to be aggressive in w/c situations. As for ADA, extending a leave of absence in certain situations can be counted as a reasonable accomodation. The end of the FMLA period means that you get to fill this worker's vacant position.

best wishes.