Need quick advice - terminating FMLA??

Kymm · November 2004

I verbally talked to an employee on August 16th when he told me he needed to take some time off for a medical condition. (At that time he had already been sick a few days). I told him we would be able to put him on a 12 week FMLA leave.
Before I was able to get a letter to him (so that it would be in writing), he called and said he would be able to come back to work in another few days, so I held off. Then, he called and said that he WOULD need to take the FMLA leave, so I did write the letter and got it in the mail. However... the address was incorrect and I didn't get it back for almost two weeks! (And then resent it to him.) My question is this.. when can I say his actual leave started? Being that I verbally told him about the FMLA on the 16th, can we use that date or is it when he is notified in writing? He is still out and we would like to terminate him. Help!!??

lhill · November 2004

Did the employee furnish a doctor's statement to the effect that he had a serious medical condition or was undergoing intermittent treatment, or are you taking his word for it?

Kymm · November 2004

We actually have doctor's certification putting him out on the 9th, so doctor's notes are not an issue.

dchr9203 · November 2004

[font size="1" color="#FF0000"]LAST EDITED ON 11-04-04 AT 02:09PM (CST)[/font][br][br]I would notify the employee the FMLA leave is conditional and effective on August 16 provided the appropriate documentation is returned to you by a specific date. If paperwork not received by that date, then your normal attendance policies apply.

Don D · November 2004

The law, and court cases, allows you to start the FMLA clock on the first day of absence associated with the condition supported by the certification.

nohr4u1yr · November 2004

8/16/04 - take it as a lesson learned - no matter what - if someone comes to you and they qualify for FMLA send them the paperwork that day or the next to protect yourself.

Curious...why do you want to terminate him? Also, it is now Nov. 4 - when did he receive the paperwork?

Kymm · November 2004

He finally got the letter about the end of August. Every month we get a new letter from his doctor stating he needs to stay out "another two weeks, or another month"... We are looking at possibly doing some layoffs in another week or two - I would feel more comfortable just terminating him once his 12-weeks is up, rather than waiting and then laying him off (if we are still considering him on FMLA)...am I wrong in thinking that way?

Don D · November 2004

It's still not clear why you want to terminate. If he fits into the reduction in force scheme, then so be it; but, it must be totally without regard to FMLA. If you bring him back to work after FMLA and then 'decide' to terminate, with no sound reasoning for doing that, you may very well be determined to be in violation of the law. Even though you may return him in accordance with the law, it is still against the law to retaliate for his exercising his FMLA rights. Based on what you've said so far, I might conclude that the only reason you pegged him for termination was due to the FMLA. And that's illegal.

Judith · November 2004

I agree with Don to put him into the RIF process IF his position would normally apply for your RIF. However, the date his FMLA starts I would say would be the 16th if you did his certification within two days of your verbal. You stated you held off because you thought he was only going to be out a few days -- I think if you held off thinking he was coming back you should give him the benefit of the doubt and start the FMLA with the date of certification. Remember FMLA must be designated within 2 days and can only be retro if you did not know of the need -- but you did. If this case comes back to you you will at least be able to show good faith on his dates of FMLA.

LE · November 2004

I would go with the 8/16 date and if he can fit into the RIF do it that way. But just be sure you are terminating him because of the RIF and not because he is out on FMLA. I had a situation with an EE who went out on FMLA and kept extending. We ended up having to keep them out up to one year before we were able to terminate them. Be careful of ADA laws.
Good Luck with this one.

Kymm · November 2004

Why did you have to keep him for a year if his FMLA was up after 12 weeks?

pork1 · November 2004

KYMM: Great question, in our FMLA letter we figure out the date on which the employee must be healed and fully released by his/her physician and let the employee know that seperation of employee/employer relationship will happen on that date.

I agree with Don your first day of FMLA should be the day recorded by the certifying physician. 84 days from the first day of absence is the last day of any FMLA period. On the 85th day the employee is either terminated or returned to full duty; do not go one day longer for anyone and you do not have to go one day longer for one!

Now we our company does have an additional 14 week medical leave that can be granted if the employee will apply for the company benefit and have his/her physician certify "that the employee can be healed and returned within this additional 14 weeks. Without the certification in our hands prior to the 84th day the extention will be disapproved; with out a clear determination by the physician that he/she can have the employee released the employee will be terminated.

PORK

Need quick advice - terminating FMLA??

Comments