FMLA & Termination

TBHRPRO · September 2002

We have an hourly employee who was recalled from layoff, and within the month turned very ill and was placed on FMLA. His 12 weeks has now passed, and we feel we are forced to terminate to stay withing the FMLA guidelines. We do not have any STD of LTD. My question is, do we need to send a letter to confirm a telephone conversation of termination? And would we need to follow the same for an exempt employee should the same situation occur? Are there any form letters anywhere that I could use for this situation? Please advise. This is our first occurence of the 12 weeks running out. Thanks or your help!

Don D · September 2002

My suggestion is to send a certified letter. You may need proof later and this is the only way to have it. The letter should kindly state the facts: The date the FMLA began and the exhaustion date of the 12 weeks. If you like you might also insert a very brief FMLA definition, the company policy of following FMLA to the letter and perhaps enclose a copy of your FMLA policy, the fact that the company does not have any additional safety net, and an invitation to reapply if your policy allows such. Have you fully considered any evidence you may have of whether or not there is a continuing medical condition that might translate to ADA?

TBHRPRO · September 2002

Don,
Thanks for your input. I do not believe we have an ADA concern on this one due to the employee's condition is stroke related, and he is continuing to have bleeding into his brain cavity. His doctor has stated that he should not work at all.

Don D · September 2002

This is indeed an emotional one, since the termination will likely cancel his insurance and he'll be having to come up with the COBRA payment. But, alas, you have no other obvious choice, given the circumstances. The gentler the letter, the better. We have a guy similarly affected who fell off a 28 foot ladder at home and has had multiple surgeries and many complications and has just exhausted FMLA who has been given the same notice, regrettably.

Pork · September 2002

Once you have met the 12 week period you have satisfied the Federal Law. FMLA is no longer an issue. We have an extention period policy of upto an additional 14 weeks for those employees who are certified by the physician as still to ill to return to work and we deem worthy of our approval to extend. Our concern and consideration is on the part of the sick employee and his/her physician. if the rehabilition is going to return the employee to work we grant the extention and can continue the disability payment. If the employee is better off being terminated for the purpose of long term disability SSI, then we terminate at the end of the 12 weeks. The Social Security Administration will not even consider a SSI case until the employee has been out of work for 6 months. Now, which is better for the employee? Obviously, termination because he/she can not get SSI if technically the company remains tied to the employee as an employer. Doing better than the Federal Law is good but it has its draw back. Good luck and a blessed day tomorrow!

cindyp · October 2002

We have an extention period policy
>of upto an additional 14 weeks for those employees who are certified
>by the physician as still to ill to return to work and we deem worthy
>of our approval to extend.

How do you determine who you deem worthy of approval to extend? Is it based on their position or responsibilities? We do not have a specific policy in place for extending leave but we have one employee in a key position who would be very hard to replace. We have granted her an extension beyond the 12 weeks to receive radiation. We have another employee almost at her 12 weeks who is in an entry level position which we must have covered daily (a cook). We do not intend to extend her leave. I'm interested to hear your take on this. Thanks.

Cindy P.

benefits · October 2002

We have an extention to the 12 week leave up to a max of 6 months (total), but for all practically purposes they are terminated after 12 weeks. Their position is posted and filled. and they are offered COBRA for benefits

Our Long Term Disability benefits (company paid to for all employees after one year of employment) does not begin until after 180 days or 6 months. The short term disability (voluntary plan) pays up to 6 months.

Once the are out for the 180 days and file for LTD, the employment status is terminated.

Pork · October 2002

Glad to; we follow our published benefit policy on Medical Leave. We do not pick amongst individuals. We do look at their connection and worthiness toward the company and its plans for the performer. If it was an individual who we knew to be not worthy of our extra effort, we wait for the individual to have read the policy and ask for an extension in writing. We, likewise, act the same for the very worthy employee that we would certainly want them to request an extension. For some reason, the supervisors and managers tend to know the policy and entitlements and they make sure that all employees know the policy and the fact that the employee must request an extension prior to the end date in writing. We (HR) have never denied anyone an extension if they have followed the policy procedures. There have been a couple that were terminated at 1 minute after the last date of their 12th week with out reprocussions. Give me a fax number in my mail box and I'll fax you a copy that you can use for your benefit and development. It works in NC, SC, and MS.

Theresa Gegen TX · October 2002

FMLA does not require termination after 12 weeks. The employer can give (and many do) much more leave. However, you need to make sure that you treat all employee consistantly. If you decide to give this employee more than 12 weeks, you are setting a policy and will give others more than 12 weeks.

Good Luck!

njjel · October 2002

Also, extenuating circumstances can apply to an employee as long as you apply those same extenuating circumstances across the board. With no policy in place you could grant some lee-way here.

FMLA & Termination

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