Voluntry Quit or FMLA

Kent · April 2006

Had an ee that had been out for a couple of days due to a domestic dispute which resulted in a hospital stay after his spouse cut him. He came in on Friday and stated "I guess you can just terminate me becuase I have to go to rehab." He offered no other details turned in his keys, cell phone,gathered his personal belongings and left. He called back today and inquired if he still had a job or had he been terminated.

Can we accept the resignation of Friday or do we have an obligation to advise him of his leave opportunities?

SMace · April 2006

Before I would advise him of his leave possibilities, I would have to get the details.

LarryC · April 2006

Kent, are your leave policies spelled out in your company policy book? Does EE have a copy of this policy book and do you a have a signed acknowledgement that he received it? If all your answers are "yes" and taking a strictly clinical approach here, then I would say you have no obligation.

If you care about this employee then I would follow through with some advice on the leaves available to him.

I say all this not knowing what "rehab" means here, or anything else about this employee.

Paul in Cannon Beach · April 2006

My answer would be, "You asked us to terminate your employment and so we did. If you want to discuss being re-hired, we can set up a time for that."

My HR mentor used to say "always accept a resignation when offered." It gives you a greater degree of control over the situation.

SMace · April 2006

You would terminate someone if they said , "Terminate me because I have to go out for triple bypass."?

Paul in Cannon Beach · April 2006

No, I wouldn't. Are you equating the two situations?

Obviously the cautious approach would be to try to advise the ee of his options. I don't know if a statement to that effect was made.

The ee was incommunicative, uncooperative, removed his belongings, and walked off his job.

I think you could make a case for honoring the request for termination regardless of the "rehab" comment.

SMace · April 2006

Rehab certainly could be an FMLA qualifying event. I believe that claiming ingnorance in this case would not be a good argument in court.

I'll argue (and there is no question the right jury will buy it) that the ee believed he had no recourse and left. It was the employers responsibility to notify him of his options. That's why I think they should have dug deeper to determine if FMLA was an option.

He threw the grenade in the room and ran. Now they have it in their hands and don't know what to do with it.

FrayWitzer · April 2006

This one calls out "Danger, Will Robinson" to me. (Extra points if you understand the reference.) Here's the game I sometimes play with statement like the one from your employee -- I play, substitute the suspect class. So, let's say the employee had walked into your office and said...

Well, I guess you can just terminate me, I'm gay;

or

The employee, upon returning from the hospital, said, I guess you can just terminate me, I'm losing my eyesight;

or

I guess you can just terminate me now, I just turned 50...

I think, under those circumstances, you'd probably say, "whoa, whoa, we don't terminate people for...."

Although I admit that "rehab" is vague, I would probably proceed with caution. I can just hear the plaintiff's lawyer's closing arguments in my head...

Evan

AnneHa · April 2006

I heard a little cautious voice too, which I tried to suppress. Unfortunatly, I failed. I'm hearing an ADA possibility here. If the rehab is for substance abuse, he may have some protection under the law. I would want more information before I termed.

Fray - Space Family Robinson. I would love to have one of those robots!

Anne in Ohio

hrdir03nafcu · April 2006

Kent:

I always feel a little shaky if all we have is a verbal resignation. Among other things, our Policy Manual requires a written resignation. But now that the EE seems to want to return to his job, he could easily claim that he never resigned....and then it's your word vs. his word. I think it's even more unclear if you never formally (or even explicitly verbally) accepted his "resignation". Further complicating the "resignation" situation is his most recent inquiry "whether he still had a job or had he been terminated?"-- that would indicate pretty clearly that he did not intend to resign....and was maybe just going on his own assumption that you would be terminating him because of his need to be absent for rehab appointments?

But there's also the FMLA thing going here: as others have pointed out, the situation with his injury and his reference to "rehab" are enough, I think, that you'd be required to advise him of his FMLA rights, and allow him his entitlement of unpaid leave to complete his rehab and then return to work.

So, unless he's a poor-performing EE whom you'd be wanting to get rid of anyway, I'd say let him return to his job, and if he needs to take time out for rehab, allow him to do so under FMLA. If you decide not to allow him to return, I'd be extremely careful how you handle it.

pork1 · April 2006

KENT: You can certainly accept his verbal resignation. However, do you want to risk FMLA, wrongful termination, ADA, legal issues with the direct answer is of course NO. Like all above, I would recommend you get all of the facts about the case with a yes, you quit, but come by and let's walk through, why you took the direct actions and quit. I would get the x-employee into my office and I would find out all of the details and would most likely move to re-instate this person with most a FMLA action, if his physician will certify. With no physician's certification or one which supports his "quit action", I would leave his quit action in place. All of this would be in concert with our retained attorney.

The best thing about this post is that you recognized a need to get someone else's opinion in this action and that is a real plus for you and this FORUM.

PORK

Voluntry Quit or FMLA

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