Can I let her go?

Jackson · November 2001

We have an employee who went on medical leave for some surgery last April. At that time, I wrote her a letter explaining that her leave was being designated as FMLA. She was out for about 8 weeks. After returning to work she has taken sick leave related to her surgery and taken other sick leave related to stress and just general poor health. Her supervisor advised me yesterday that she has now been absent for the last 3 weeks and that she has called to inform him that she will need to take an additional extended leave of absence because of her "condition". She is very vague in defining her "condition". We know she has family problems and we feel that her bigest problem is her emotional state. We cannot afford to have her position vacated for an indefinate period of time and don't want to grant an extended leave of absence. We would like to let her go with the provision that she may reapply when she recovers. This will enable us to go ahead and fill the position. (Based on what we know at this point, her "illness" would not qualify as an ADA issue) My question is this: Does all her accumulated leave taken since I gave her the FMLA letter qualify in adding up her limit of 12 weeks? If so, her 12 weeks has expired and I could move on with her dismissal without FMLA being an issue. If anyone can advise me on my next move I would appreciate the help.

System · November 2001

Firstly, make sure of how your company determines the FMLA year in order to determine when she runs out of the 12 weeks. Second, if the reasons for current leave are FMLA then, yes, you can charge them against the 12 weeks. Get, the documentation and make sure. Advise her immediately of what you need and by when (two weeks). Be careful about charging retroactively, though, if you haven't acted timely. Third, if she runs out of FMLA time and the reasons for continuing absences are not disability-related (make sure further leave as a reasonable accommodtion under ADA wouldn't be applicable), then under your company's policy, if no more leave is appropriate, you take the action. If your company's policy is to fire people as soon as the 12 weeks of FMLA leave is up, then that's what you should do here.

Also, check out your state's laws on leave like FMLA. Sometimes they may have more "causes" for leave than what is identified under the federal legislation.

Peyton Irby MS · November 2001

does your fmla policy have a "rolling" twelve months for fmla leave? i would need this to give a better answer?

Peyton Irby MS · November 2001

i agree with the post about adding this time to existing fmla leave thus taking her over the 12 weeks. i also agree that you need to be careful about retroactive application of leave to fmla leave. you apparently do not have a medical certification that this is a "serious" health condition as contemplated by the fmla. if it is not a serious health condition, then your normal absentee rules could apply. has she sought an accommodation for an injury/illness as to make this an ada case?

Equality · April 2002

If you did not notify her of previous FMLA, you are not a liberty to justify adding on previous leave. Be careful speculating without knowing for certain that this condition falls under ADA, and FMLA would definitely be an issue.

Mike D · April 2002

>If you did not notify her of previous FMLA, you are not a liberty to
>justify adding on previous leave. Be careful speculating without
>knowing for certain that this condition falls under ADA, and FMLA
>would definitely be an issue.

The initial post explained that a letter was written informing her of FMLA designation.

Can I let her go?

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