FMLA runs out-what to do?

I have a great employee whose FMLA leave will run out in 1 week. She may still not be able to return to work at that time. It has never happened before that an employee's FMLA leave has run out and the employee was still unable to return to work. Do I terminate her or keep her job for her? If I do not terminate her, will I be setting a precidence for future occurences similar to this one? For example, if I have another employee in the future who runs out of FMLA leave and does not return to work at that time due to a continued medical reason, but this employee is not one that I want to keep employed and I terminate her, would she have a legitimate reason to file a lawsuit because a former employee who ran out of FMLA but did not return to work due to a continued medical reason was not terminated? I just don't know what to do.


  • 3 Comments sorted by Votes Date Added
  • You cannot keep one and term the other without a legitimate business reason, so the answer is yes, if you extend the time for the first employee you will be setting a precedent. (One possible reason might be that employee one will be back in one extra week, where employee two won't be able to come back for six more weeks and your business needs require you to replace immediately.) I suggest you term both and invite them to reapply when they are able to return to work. You can review your business needs at that time.

    Do you have a rehire policy? Our policy is that people rehired within 6 months are able to regain their seniority. We simply adjust their hire date so the time they were not with us is not included in their total time with the company.

    One note: you might be able to extend the time off as a reasonable accomodation if the employee currently qualifies for the ADA as amended. Of course, you will have to do the same for the second employee if they qualify too.

    Good luck!


  • It will also help if you write a policy for future situations.
    We have a policy that would allow and ee to apply for an unpaid medical leave of abscence following the exhaustion of FMLA and any paid leave.
    Agree with Nae. .do for one, do for all.
  • We have had this happen and added a personal leave of absence policy to cover this type of situation. Other things to consider are insurance.

    We have our short-term disability set for 13 weeks with conversion to long-term occuring on week 14.

    If someone is approved for personal leave (and we do make it clear for how long it is approved and if the time extends beyond that they need to re-apply as there is no promise/ guarantee it will be extended), we start COBRA at the same time.

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