terminally ill

benefits · September 2002

I have a supervisor (not a key employee) who has a serious health condition. She qualifies for FMLA and has completed all the required paperwork. Her condition can only be treated in two places London, and a mid-western state. She started her leave the early part of September and the return date says "indefinite". She will be moving 1,740 miles to be part of this specialized program.

Since she has FMLA she is entitled to the 12 weeks. And since FMLA has job protection we can not technically fill her position until after 12 weeks. However a member of management has instructed me to meet with the employee and ask for her resignation. I really don't want to do this. Realistically, she will probably not return --- but I believe that she is entitled to 12 weeks job protection.

Please help

Terry · September 2002

To ask her to resign is to invite a lawsuit. Give her entitlement of 12 weeks and hire someone temporarily to cover while she is out.

Don D · September 2002

Right on Terry! Your executive is free to add a position to the staffing pattern and have you fill it with a replacement. But, make it clear to the ill ee and the new employee that the ill employee's position is FMLA protected and is there when she returns at the end of 12 weeks. If then, as you suspect, she does not return, you will not have violated the law. Otherwise, you will.

Pork · September 2002

While this is clearly an FMLA case there is also the Social Security Disability Issue with a predetermined employee certification of terminal illness, where there is "no reasonable expectation" of the individual returning to work. That an individual remains employed under FMLA. Do you counsel with the employee, do you counsel with the SS administration heads, do you keep your mouth shut and then terminate the employer/employee relationship in three months when the individual did not return? Thus causing the individual a much longer waiting period to get SSI started. I believe that FMLA was designed for the individuals that needed 12 weeks or less to be able to return to work. For the very small company "right on the bubble of exempt or not exempt there are words to not count the permanently disabled as a part of the employee count, thus allowing the company to disregard FMLA. The long term effect and benefits of the social security disability far out way the need to protect the position of the terminally ill; this even becomes more traumatic for those who did not have company medical benefits, but is now terminally ill. Your company could be doing the individual a dis-service to keep him/her on board. Just a thought but a real consideration. Good luck Pork

SDDCHR · September 2002

Here's something to think about. Has this employee stated that they will not return after their 12 weeks of FMLA? Remember, if an employee gives unequivocal notice of intent not to return to work, the employer's obligations under FMLA to maintain health benefits (subject to COBRA requirements) and to restore the employee cease. However, these obligations continue if an employee indicates he or she may be unable to return to work but expresses a continuing desire to do so. 29 CFR 825.309

Margaret Morford · September 2002

We always made it clear that regardless of whether the employee told us they were going to return or not that we would give them the full FMLA they were entitled to. This enabled us to get an honest answer to the question of whether they planned to return or not, particularly from mothers who were going to stay home with their children after they were born. Otherwise, every employee tells you they are going to return in order to continue to get their insurance at the employee rate. You can't blame them. However, once employees knew we were serious about our policy, many of them told us (We requested it in writing) that they did not plan to return and wanted their last day to be whatever the date was that their FMLA ended. This enabled us to refill their position and plan for the fact that they were not going to return.

Margaret Morford
theHRedge
615-371-8200
[email]mmorford@mleesmith.com[/email]
[url]http://www.thehredge.net[/url]

Rockie · October 2002

She certainly is enititled to FMLA and ,depending on her disability, might be entitled to ADA protection as well after the FMLA is exhausted. Unless your company is looking for a lawsuit, your boss might want to reconsider this.
(This is provided your company meets the guidelines for having to provide FMLA coverage, at 50 least 50 employees).

terminally ill

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