Is failure to return from FMLA an "involuntary" termination?
CWinMN
4 Posts
We had an employee who's FMLA expired in early January and he was separated from employment. Is this considered involuntary under the ARRA provisions?
I've read all the recent information released by the DOL regarding the definition of "involuntary" termination. It states that "An involuntary termination means a severance from employment due to the independent exercise of the unilateral authority of the employer to terminate the employment, other than due to the employee's implicit request, where the employee was willing and able to continue performing services." And later, "Involuntary termination occurs when the employer takes action to end the individual's employment status (but mere absence from work due to illness or disability before the employer has taken action to end the individual's employment status is not an involuntary termination).
But, does the expiration of FMLA contsitute an "employer action" to end employment?
Any thoughts?
Comments
We had an employee who's FMLA expired in early January and he was separated from employment. Is this considered involuntary under the ARRA provisions?
I've read all the recent information released by the DOL regarding the definition of "involuntary" termination. It states that "An involuntary termination means a severance from employment due to the independent exercise of the unilateral authority of the employer to terminate the employment, other than due to the employee's implicit request, where the employee was willing and able to continue performing services." And later, "Involuntary termination occurs when the employer takes action to end the individual's employment status (but mere absence from work due to illness or disability before the employer has taken action to end the individual's employment status is not an involuntary termination).
But, does the expiration of FMLA contsitute an "employer action" to end employment?
Any thoughts?
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Absent any FMLA concern, you would be able to apply a deemed resignation policy which, if you don't have, you should write: it simply states that 3 consecutive no-call/no-show events shall be considered the employee's resignation.
However, with FMLA, most people are uncomfortable dropping the axe as fast as they can. For one thing, unless your FMLA time accounting is squeeky clean and yoru notifications all 100% proper, you could lose summary judgement. Of course, summary judgement can cost you 20-40K to obtain, so avoiding the situation is in your best interests. The best way to do that is to be compassionate about the employee's situation. Reach out to them by phone, and by certified, return receipt requested mail, and document everything. While you are at it, audit your FMLA records on the case and make sure you haven't messed anything up in case the employee is unreasonable or push comes to shove otherwise.
I believe we are ok with the FMLA. We didn't "drop the ax" too quickly. In fact (very long story that began long before I started with the company) his leave was actually extended through use of a personal LOA and he had been away from work for several months when I started with the company. At that time, he had reached the point where he was again eliglble for FMLA (end of the 12-month period). So we offered FMLA again at that time. We also did inform him that when the FMLA expired this time, we would not be able to extend the leave any longer. He informed us about a week before his leave expired that he was not able to return.
He did elect COBRA. I know that because his term date was in January of this year, I need to send him the new information regarding the ARRA. My real question is will he qualify as an assistance elgible individual? Was this an "involuntary" termination? I don't think so, but the wording is not clear. . .
IRS has issued a great document that really answers a lot of COBRA ARRA questions. I'm assuming that your question has to do with COBRA ARRA even though I didn't see you specify that.
http://www.irs.gov/pub/irs-drop/n-09-27.pdf
See Question 4 on page 6.