FMLA and End of Project Funding (subtitled: Someone Out There Knows the Answer But Not Me)

bragaw

EE goes out on FMLA maternity leave in October. Earlier in the year, supervisor advised that funding for project was running out and unless additional funding received, the funding would be exhausted in November (which it would have, had she continued to work full time). ER hired part time temporary help and now funding is completely exhausted.

Before going out on leave in October ER reminded EE that unless addtional funding received, ER would have no funding for her beginning January 1, 2009. EE requested that her final vacation/sick leave be paid in 2009 which ER agreed to do as her originally planned leave would have extended into January 2009. EE took leave a little earlier than planned and now her leave expires on December 31. No additional funding has been received. Logistically, is her last day of work considered the end of her FMLA, i.e. December 31? Do we issue a termination letter while on leave? We do not believe there will be an issue--we just want to get it right.

ACU Frank

Wow... I would have bet I would be the last person to ever say this on the Forum, but here goes...

I wouldn't do anything further without running it past an attorney.

There. I've said it. You guys can pick yourselves up off the floor now.

I see a few things that worry me here. One is your obligation to return her to her position - or an equivalent. Is that obligation erased by a lack of funding for a specific project? I don't know, but I wouldn't want to guess wrong.

Also, you mentioned that her leave took a little longer than expected, and now expires on the very day before her job is to be eliminated. I see red flags throughout that "coincidence".

bragaw

ACU Frank--We do not anticipate any issues from the EE. We are a non profit company, entirely dependent on state and federal funding.

We just want to know when her termination date is, i.e. when the funding ran out or when her leave ended? Can we pay her vacation/sick leave the first week of 2009?

NaeNae55

If you had another employee whose funding ran out but had leave available, how would you handle? You must treat this employee the same.

I suspect you would term at the last day of funding for the project and then pay out any leave owed. If that is what you would do for an employee not on fmla, then that is what you should do for this employee. Just follow your policies or past practices for these types of projects.

BTW, are you absolutely certain the project won't be funded at all? What would you do if it is funded effective Feb 1?

Good luck!

Nae

davids

FMLA does not provide advantages to an employee that he/she would otherwise not have had. So, you can lay off or terminate an employee if you would have had the employee not been on FMLA. Of course, the key to withstanding a challenge is to document, document, document that the termination would have occurred anyway.