Employee not returning after leave

MSwanson · July 2003

I know I read somewhere if an employee has no intention of returning after a FMLA that it does not need to be granted, is this true?

Here is the situation: I have an employee who is going on maternity leave on December 20, 2003 and has already turned in paperwork to term her 3 months after the birth of her child. She told me that she wants to go on FMLA to keep her insurance for 3 months at the lower premium and also be paid out her sick time. She is in a hard to fill position and is letting the company know 5 months in advance so they can fill her position. Any thoughts on how you would handle this situation?

SDDCHR · July 2003

Take a look at 29 CFR 825.312. This specifically states that if an employee unequivocally advises the employer either before or during the taking of leave that the employee does not intend to return to work, and the employment relationship is terminated, then the employee's entitlement ot continued leave, etc. ceases unless the employment relationship continues......

mwild31 · July 2003

Yeah! I know the answer to this one :-) "Employees who give unequivocal notice that they do not intend to return to work lose their entitlement to FMLA leave." DOL, elaws Family and Medical Leave Act Advisor, FAQ.

In our case, we just had the employee sign a form that stated they had no intention of coming back to work and thereby waiving their rights to FMLA.

mamhradm · July 2003

"...also be paid out her sick time...

Will her sick time cover the 3 months she is wanting to keep her premiums low?

If so, why not show her termination date at the end of the 3 months, she is still employed but using paid sick leave (FMLA wouldn't necessarily then be an issue).

Consider her a good employee for the advance notice and possibly allow her(if necessary) to train her replacement on a part-time basis if she's agreeable.

Margaret Morford · July 2003

Okay, here I go being the heretic again. She has done you a huge favor by telling you she doesn't plan to return and allowing you to move on and not wait three months to find out on the Friday before the Monday she is to report back she's not coming back. The message you send to every woman of child bearing age in your organization is not to tell you their plans until the absolute last moment. Give her FMLA and make it known that there is no penalty for being honest with the company and telling them you're not coming back.

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

Leslie · July 2003

I totally agree with Margaret. As long as the ee qualifies for the leave and is an employee in good standing, let her honesty be your guide.

MSwanson · July 2003

Thank you for your input with this situation. It was very helpful!

mwild31 · July 2003

I REALLY hate to go contrary to Margaret - but there is another issue here. If she goes on FMLA and you continue to pay her health insurance (as you're required to do, if she's eligible) do you plan on asking her to pay it back once the 12 weeks are over? If any bonuses are given during that time, do you plan on paying her those bonuses as well? In my company, this could easily add up to over $800 - just so you don't send the wrong message? I think that if she's stated she has absolutely no desire to return - you go with that and that's the message you send to the rest of the employees, it's your benefit if you choose to accept it.

Ms_Shepard · July 2003

I agree with MWild. We had the same situation here. An employee decided to elect FMLA so she could still be on our insurance and receive pay for holidays, AND accumulate more vacation time until her paid leave ran out, etc., but she also said she would not be coming back. She said she was doing us a favor by letting us know ahead of time that she had no intention of returning and that we could fill her position. This goes against the reason for FMLA in the first place; to HOLD THE POSITION UNTIL THEY RETURN. I would not even attempt to advertise for an employee's position who claimed to have elected FMLA(what if you fill the position and they decide they want to come back and mention that they elected leave under FMLA?). We told her if she had no intention of coming back, she could not elect FMLA and that was that. She elected to resign. As it turned out, we filled her position (also a hard-to-fill position) in about two weeks with someone who is working out very well.

Margaret Morford · July 2003

All they have to do is come back and work one day and they don't have to pay back their insurance, etc. I'd draft my holiday pay policy and my bonus policy to say that you must be actively employed and not on any type of leave of absence to receive these. Or you can pro rate bonuses to take into account any type of leave of absence.

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

TALLEY · July 2003

In the past two days I have been researching FMLA and employees not returning to work. I just happen to have printed out section 29 CFR 825.213 as part of my research. Section (c) states "An employee who returns to work for at least 30 calendar days is considered to have "returned" to work." The section continues, explaining that an employee who goes directly from FML to retirement or retires during the first 30 days after returning to work is deemed to have returned to work. Is there an amendment to this section?

mwild31 · July 2003

I was under the impression that the employee had to fill some time in (30 days) at their job to be considered "returned to work". Where in the reg's does it state that they can come back for only 1 day? If it does state it in the reg's, then if you can amend a policy around bonuses that circumvents FMLA recipients, can you do the same with the return to work time so that a company doesn't get stuck with a $800 bill (insurance costs) at the end of 12-weeks for an employee that only returns for 1 day?

Margaret Morford · July 2003

I still stand by my answer about giving them the leave when they tell you ahead of time and allow you to plan. That's worth the medical bills alone, which you'd probably will have to pay anyway. Most employees will take COBRA for a month or two to get their medical bills paid. (No matter how expensive COBRA is, having a baby is more!)

However, apparently I was under the mistaken impression that if they returned at all, they had met their obligation to the employer. From the postings above, it seems that they must stay for 30 days. Thanks for setting me straight on the time interval! This is why I read the Forum because I'm always learning something new.

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

Employee not returning after leave

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