FMLA Exhausted - Can we terminate?

MHarris · May 2003

We have a driver who will shortly exhaust all of his FMLA leave. He used all of his accrued PDO's at the beginning of his leave and we do not have a formal leave of absence policy. His absence is posing an undue hardship on one of our facilities. With this being the case, are there any issues with us terminating him if he does not return after he exhausts his leave? My feeling is that we are free to move ahead as long as we notify him of the pending action should he not return from leave.

In addition, he owes a considerable amount in unpaid premiums for his portion of his various insurance coverages - including the disability he is receiving payments from. He was notified of the 30 day grace period and we have offered to make arrangement for repayment but he continues to drag his feet. After FMLA is exhausted if he still refuses to pay, can we cancel his coverages back to the date his premiums began to lapse or can we only cancel it as of his termination date?

I don't want to make this matter more complicated that it actually is. Does anyone have some cut and dry answers?

Leslie · May 2003

Since you placed him on FMLA you can follow the rules of FMLA which allow you to term after the 12 weeks expire as long as you notify him of your intent to do so. Without an overriding leave of absence policy, I would suggest this is what you do.

If he does not pay his premiums, you can indeed cancel his coverages back to the date the premiums lapsed.

System · May 2003

You also need to consider whether he's disabled under the ADA. That could require additional leave after FMLA is gone.

James Sokolowski
HRhero.com

mbeam · May 2003

Has a past precedent been set with anyone else in a similar situation?

Don D · May 2003

James: Since when does the ADA require "Additional Leave". Have you been to the class where they teach you to stretch reasonable accomodation into additional periods of leave?

Nat · May 2003

Don, we just had a similar situation where the individual had exhausted their FMLA and after we looked at whether or not she had a disability, it was determined that because of her condition, she would be "perceived" to have a disability. At the advise of our attorney, we offered her additional time off. I believe that the ADA does state that time off can be a reasonable accommodation. We did not call her time off extending the FMLA. We made it clear it was not extending the FMLA and made it time limited.

Don D · May 2003

Nat: I totally understand. It's just that sometimes some of us tend to think automatically that ADA DOES REQUIRE additional time off, when it certainly does not. Reasonable accomodation is, as you say, the primary obligation imposed on employers by the ADA, and a brief period of time, determined by the employer to be reasonable, may sometimes be appropriate. I just don't want us all to fall into the mindset of, "Oh, but she's also covered by ADA and that means additional time off." x:-)

Nat · May 2003

Agreed.

FMLA Exhausted - Can we terminate?

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