FMLA
durasupreme
68 Posts
An employee's 12 weeks of FMLA leave is up today. He indicates his doctor won't let him return to work until the end of March (another 6 or 7 weeks). Should we terminate his employment due to exceeding FMLA, request additional medical certification, allow him to remain out but replace him and then offer him a different position (possibly in another area or job) when he is able to return?
Comments
Second, decide whether this person would fall under ADA. If so, then you need to explore whether an extension of 6 weeks would be a reasonable accomodation.
Third, if you do terminate, tell the employee he/she is welcome to come back and reapply for any open positions when he/she is released to come back to work. You treat him/her like any other previous employee reapplying. If he/she had a good work record, you would want to rehire. If not, you would not rehire. If there's no documentation in the file of bad work performance, I recommend that you rehire or he/she may bring an EEOC charge claiming that you are punishing him/her for exercising his/her FMLA rights by not rehiring. If the file has nothing in it, you're going to have a hard time justifying not rehiring into an open position.
Margaret Morford
theHRedge
615-371-8200
[email]mmorford@mleesmith.com[/email]
[url]http://www.thehredge.net[/url]
Although seemingly a good idea on the surface, I would not use work performance a criteria for deciding whether to extend leave in this situation. Work performance can be a subjective criteria which can cause problems if it is used for a negative employment decision against an employee. In other words, if you deny one employee and use work performance as the basis, he/she will call to question the work performance of others who were granted this benefit. In a discrimination complaint, using work performance as a basis to deny medical leave could be problematic.