Termination after FMLA Leave Expires

pattyo

Our first FMLA qualified leave is coming up for expiration in early April. This employee has been out to care for a seriously ill child. Her absence creates a hardship yet we are getting by with other employees taking on her workload. She has been unable to commit to any kind of intermittent leave so has been out alot. If she is unable to commit to a full schedule of 37.5 hours per week by the expiration of this leave do you see any red flags with replacing her permanently? She will have used up all her PTO available for the year which runs concurrent with FML. Also, her position requires her to work in the office. Thank you.

jmcaa

I would be very careful about replacing her. If she was on qualified and approved FMLA and you terminate her because she was "out" too much that would be retaliation.

You should run this by your attorney.

ACU Frank

It's not retaliation if she can't return to work.

NaeNae55

Pattyo: if I understand you correctly you have an employee who will soon have used up all of her FMLA leave. You are concerned that at the end of her leave the employee will still need to take time off, and you wonder if there is any reason why you cannot term her if this is true.

Do not anticipate too soon that the employee will not return. April is still weeks away. Sometimes employees exaggerate their situation to gain sympathy or because they feel they have to. Sometimes they get up off what you [I]thought[/I] was their death bed to return to work for fear they will lose their job. If they return, you want to make sure the employee's job is still available to them. Having someone else already lined up for the position could get you into difficulties.

Just keep in contact with the employee. If she says she will be coming back on X day, then move forward as if that is true. A few days before X day contact her again and confirm that she will be returning. She may confirm she is returning, or she may ask for more time. You will have to evaluate your situation each time. If all this continues and she runs out of leave and still wants more time, then you can decide if you need to term her or give her a bit more time. Waiting is contrary to business sense, but appearing too hasty opens you up to lawsuits.

A few things to keep in mind: 1) Is there any other law that applies (ie: she needs a few more days as an ADA accommodation), and 2) are you treating her the same as other similarly situated employees (you have termed others for not returning from FMLA)?

IF there are no other laws that apply; IF you are treating her the same as you have treated others on FMLA; IF she either tells you she is not returning OR she tells you she cannot come back yet, then you can term. Send her a nice letter explaining you must fill the position, invite her to apply again when her situation changes, and wish her well.

Good luck!

Nae

pattyo

Thank you all. She has tried to come in to work when her daughter has good days, and even those cannot be predicted. We've come up with a flexible schedule she is attempting to work (anticipating her daughter does okay). I know April is a ways off and I am concerned about bringing up too soon the fact that her Family Medical Leave will be running out and we'll have to get her position filled. I understand you have to be careful about making an employee feel like you are putting undue pressure to return to work. It all seems like a delicate balancing act. How soon is too soon? Would it be best to just wait until leave runs out then discuss with her we'll be interviewing to fill her spot since she cannot commit to returning full time? Just an added note: I'm getting some pressure from upper mgmt. to lay our cards on the table so she isn't surprised when the time comes to replace her if she is in this same situation by April.

NaeNae55

You ABSOLUTELY do NOT want her surprised when her time runs out. However, you don't want her to feel pressured either.

We handle it by giving the employee statements regarding their leave. It depends on the circumstances as to how often we supply them. Sometimes it is a monthly statement, sometimes we give one with each paycheck. I would give this employee a monthly statement of the amount of FMLA she has used and how much she has remaining (and perhaps more frequently in the last month.) Believe me, she'll look at it. Plus, providing you keep copies you will have all the documentation you need if the situation turns sour.

Good luck!

pgaughan

We have a practice of terminating employees AFTER they have exhausted all their allotted FMLA time. However, we let them know when their FMLA will be exhausted and when they would need to return. We don't high pressure them, but instead this is our way of informing them of what their choices may be. If they don't return, then we send them the nice letter letting them know we are terminating their employment, but that they can certainly reapply whenever they may return to work. FMLA gets more and more questionable all the time. We have many who take FMLA for stress or want intermittent leave for every reason in the book - one requested it the other day "just in case" she ever had a serious health condition??