FMLA - 12 Week Expiration

sstogner

We have a facility that had an employee who was out on 12-weeks approved FMLA leave. Unfortunately, the employee exhausted her 12-weeks of leave and isn't able to return anytime soon. So, the employer is terminating (i.e. taking off the books) and filling the slot permanently.

The question we have is what should be the termination date? I had someone tell me, in the company, that the termination date should be the LAST date actually worked. I say that it should be the date the employee was scheduled to return to work (i.e. at the end of their 12 week allowance). My justification is that if the employee decided to file for unemployment OR worse, try and file an EEOC complaint for terminating while on FMLA we can show that we allowed the 12 weeks under the law. To use the date last worked would make it look like we didn't grant the FMLA leave, in my opinion.

Who's right? Thanks

sstogner
san antonio, tx

cnghr

I agree with you that the termination date should be the date the employee was to return to work. If you make it the last day actually worked, it would appear to me that you didn't allow the 12 weeks of FMLA.

Sharon McKnight SPHR

The term date should definitely not be before the date the employee was scheduled to return to work.

Also, if you have any other types of leave, such as personal leave or short term disability, that are available to employees that do not, per your policies, have to run concurrent with FMLA leave, then I would think twice about terming at the end of FMLA leave before allowing the employee to utilize those leave options.

Sharon

jmcaa

You should also evaluate whether you need to provide an accommodation under the ADA before terminating this person.

Irie

Isn't attendance an essential function of the job and does not have to be accommodated under the ADA if the employee can't come to work?

NaeNae55

Irie has a point, but accomodation might simply mean another 2 weeks off. After 12 weeks already some might consider another 2 weeks to be a reasonable accomodation.

In this case the employee won't be able to come back "any time soon" so I think we can safely assume ADA won't apply in this case.

ACU Frank

I would have never considered 'extending' FMLA beyond the 12 weeks as an ADA accommodation. Is that something the DoL has suggested?

NaeNae55

If you have an employee with a serious illness (ADA) who is expecting to come back at the end of 12 weeks, and just before returning their doctor says they need another 2 weeks, wouldn't you consider that an ADA accommodation? I am thinking I even read of a similar case several years ago under the old ADA. The court ruled in favor of the employee. After 12 weeks, another 2 weeks seemed a small thing to ask.

ACU Frank

Depends on the employee.