FMLA Exhausted

sanua · November 2002

I have an employee out on FMLA who has exhausted her leave. She has cancer and has just started chemotherapy after surgery. The prognosis does not look favorable. In previous cases where staff have exhausted FMLA we have terminated their employment (these staff did not have terminal illnesses). However, in this case management does not want to terminate since they think it would have a negative psychological impact. They would like to switch her over to Non-paid Leave and change her status from FT to PRN which would eliminate medical and any other benefits -- but she would be eligible for COBRA. My concern is that we are not following our prior practice. However, we do have a statement in our policy manual that management has the discretion to place regular full-time employees on non-paid leave of absence in instances where unusual or unavoidable circumstances require prolonged absence. Any feedback/concerns/advice from other HR professionals would be SO appreciated!! -- sh

Theresa Gegen TX · November 2002

You may run into a problem when some other employee exhausts leave and is not kept on. The other employee could say, you didn't do it for me because I am "_____" (older, different sex, black, etc).

Also, are you going to keep this person's job open indefinitely? What is the status of the person on indefinite long term leave? Are they entitled to come back to work and bump another employee later? This has to be thought out before you put the person on leave.

One thing you could do, is tell the person that they will be terminated, but that you encourage them to reapply for employment when they are able to work.

Good Luck!

sanua · November 2002

Thanks for your input -- these are questions I'm trying to get management to consider. My major concern is that we will be setting a new precedent for leave -- extending it -- and I'm very concerned about how that will impact future FMLA requests. How could we justify only giving future employees 12 weeks when we have given this employee more?? Even if we said we only extend it for "terminal" employees I'm not sure that would protect us from another employee claiming discrimination. I have strongly suggested termination along with the statement that if, in the future, they are able to come back to work we would be happy to consider hiring them back. Again, thank you.

vmiller MO · November 2002

I have another thought. Is this person "disabled" under the ADA. If you run the ADA analysis and conclude that the person is disabled, then the issue of reasonable accommodation is necessary. It is possible that a reasonable accommodation could be part-time status if you have a vacant position. It could be reduced hours, etc. Since the ADA requires an "individualized" evaluation, you may be able to find a defensible way of accomplishing the result that management wants.

Don D · November 2002

Notwithstanding the potential legal consequences that may or may not follow down the road, your policy specifically addresses the company's right to deviate under unusual circumstances, so apparently management anticipated this possibility when the policy was written. Management will have to decide which way the scales tip. They may decide that this employee's potentially disastrous perception of being terminated while terminally (?) ill far outweighs the speculation about precedents and future challenges. Termination or reduction to PRN will equally trigger COBRA (you indicate) so her options to continue coverage are there in either case. ADA assumes that she can report to work, even if PRN, and one guesses that she will not. Even if she becomes PRN, she will not have ADA protection if her condition will not allow her to return. Personally, given the circumstances, I would not bang the termination hammer. It will ring hollow to promise her that you'll consider her upon re-appliation. She already has her knees cut out from under her. I vote to preserve the employee's dignity and send the most humane message possible throughout the company. And don't forget the message will resonate throughout the community. We're not supposed to make emotional decisions, but sometimes, when no one's looking, we do.

Anita · November 2002

I agree 100% with Don D. I think not terminating the employee now is the right thing to do. Give them what little hope they may have of having a reason to fight to live.

Gillian · November 2002

Do what is "right" and "right" in this case is to extend the leave.

Paul in Cannon Beach · November 2002

Your company could consider creating a "leave sharing" policy which would allow co-workers to donate leave to a fellow employee under specific situations.

This was discussed in another forum post: [url]http://www.hrhero.com/employersforum/DCForumID16/110.html[/url]

Christy Reeder's post includes a link to a sample policy on shared leave. If you do a web search on "shared leave" you will find some discussions on the topic and sample policies.

I don't know if any companies have ever "matched" donated leave or if its even something you would want to do but its a thought. For example, if Joe gives Bob a week of his leave, the company matches that with an additional week. Leave law is not my specialty so take that with a big bag of salt.

Paul

FMLA Exhausted

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