Employees on FMLA leave and do not return to work

I'm curious how other orangizations handle this problem.  We have had a number of employees who out are on FMLA because of childbirth.  Near the end of their 12 week leave, they give their notice they are not coming back.  Would you consider this their two week notice?  What term date would you use.  the start of their leave, the date they gave notice or the end of their leave.  And would they be rehirable?

Sorry, this sounds pretty anal, but we have quite a discussion going here. 



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  • The term date will be as of the date they provide to you unless you want to be the one responsible for severing the relationship.  That's a general rule for someone who quits, whether on FMLA leave or not.  However, if they are on FMLA leave and you say the term date is way back when the leave started, then you have fired them while on FMLA leave, which is generally not a great plan.  Also, if they have insurance benefits, the termination of employment date wouldn't really coordinate with their termiantion of benefits date, which means that your story starts to unwind and it just makes your Company look disorganized (and conspiratorial) if your decisions and documents are questioned later.

    If the notice is a 2-week notice, then it's a two week notice.  If it doesn't stipulate 2 weeks, then it's not a 2-week notice.  If they are on 12 weeks of leave and give 2-weeks notice at the top of the 10th week so that their employment ends at the end of the leave, it's still a 2 week notice.  HOWEVER, there are special provisions in the FMLA for what you no longer have to do as soon as the employee communicates no intention to return to work.  I recommend you delve into that some more in the regs or with your attorney.  Additionally, "return to work" with respect to benefits means 30 days back on the job.  If they're not coming back at all, or they come back but then leave employment before 30 days after returning, they are actually responsible for the total cost of their benefits from the time they stopped working.  That, too, is in the regs.  Getting a judgement and collecting are a completely separate matter, but it's something to keep in mind.

    Why wouldn't someone be rehirable in this situation?  Are you saying you wouldn't rehire someone because they didn't return to work from FMLA leave in a prior period of employment?  That sounds like a good candidate for a law suit for retaliation or discrimination, both of which are generally proscribed in employment law.  If the situation were due to, say, heart disease or Lupus instead of a change in priorities due to a new family member, would you suggest that the person can't come back to work because they quit while out on leave?  Even if you would suggest such a thing, I suspect it could land you in hot water.

  • Thank you TXHRguy, you have answered this quite nicely.
  • I agree with TXHRguy, but I would add this.  If you have a resignation form then I would have them sign the form. My form has a place for the employee to put his/her last day of work and then sign their name (then there is no concern or guessing when the last day of employment is).   If you don't have a form like this then you could start using one (but make sure you are using it for all employees that resign and not just those on FMLA leave).  Here is a sample you could use:

    <?xml:namespace prefix = o ns = "urn:schemas-microsoft-com:office:office" />



    Date: ___________________


    I, _______________________________, hereby notify <company name> of my resignation from the position of ___________________________ in the Department of ________________________________.


    My last day at work will be ___________________, 20______.



    Signature: ______________________________________


    Witness Signature: ______________________________________


    so in regards to the person being rehirable, what does your policy say about rehiring former employees?  Some companies have a policy that says that they won't rehire anyone for any reason.  If you don't have such a policy then they would be eligible to reapply for any open position and be considered with all other candidates you have.



  • For someone who does not come back after FMLA because they chose not to come back (such as in the case of childbirth), we use the last date paid.  For example, if the last day of work was January 28, but they were paid 2 vacation days, then we would use January 30.  The reason being is that FMLA allows you to recover costs incurred for maintaining "group health plan" for all unpaid days. 

    For someone who does not come back after FMLA because they are unable (continuation of FMLA of themselves or the employee's family member which could include the newborn child) we use the date that their FMLA expires because you are not allowed to recover costs incurred for maintaining the "group health plan".

    Would they be rehireable? That depends on your policy.  Do you rehire other employees who have terminated, then unless there are some extenuating circumstances, yes they should be rehireable.  Do you have a policy that says you do not rehire regardless of the circumstances? Then they would not be rehireable.

  • One other caveat: the employer's right to recover benefit expenses for a non-returning individual is affected by the reason the person does not return.  If they cannot return because of the FMLA related matter, then you may not be able to recover.  In a child birth situation, I'm not sure how that pans out.  It seems obvious if the child has special needs but not so obvious if the child is perfectly healthy.


    Also, LadyAnn has a good point: if you have a blanket rehire policy that affects all former employees regardless of cause of termination, then I believe you can follow that safely.  I think anything in the middle is probably dangerous ground if it swings against the person who did not return from FMLA.

  • How often are you seeking to recover benefits from a non returning worker?  I had someone go out on FMLA who did not return, but we figured that it was better to let her have the benefits than look like the big bad company for asking for repayment.  Of course we're a small company and do not have many FMLA leaves a year.  Just curious how many of you have sought to recover and how it went. 

  • We've never tried to collect as much for the reason you gave, not to be the big bad company, as for the reason that it's very hard to recover small claims in Texas.  We're also not terribly large, so it doesn't come up often anyway.


    Actually, come to think of it, it's only come up once.  The other non-returning individuals that I can recall did not come back because of their condition.

  • We have never tried to recover benefits from a non-returning worker as we have maybe one or two a year who do not return.  T

    he amounts are not that great to put in the effort to recover a few hundred dollars.  Quite often, the employee's reason for not returning is one of real hardship and so we'd rather they deal with their issues and we try not to create additional ones for them. 

    Who knows, maybe perhaps they will be rehired at some point.  It's just not worth the ill will to do it.

  • Pam - I have never sought to recover benefits.  Even when I worked for a Fortune 500 company we didn't do this.  As you mentioned it was an image thing and also someone else mentioned the small claims issue.  It would have cost us more money to go after the person then we would be getting back (if we ever did!)



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