Termination after FMLA Leave Expires
pattyo
71 Posts
Our first FMLA qualified leave is coming up for expiration in early April. This employee has been out to care for a seriously ill child. Her absence creates a hardship yet we are getting by with other employees taking on her workload. She has been unable to commit to any kind of intermittent leave so has been out alot. If she is unable to commit to a full schedule of 37.5 hours per week by the expiration of this leave do you see any red flags with replacing her permanently? She will have used up all her PTO available for the year which runs concurrent with FML. Also, her position requires her to work in the office. Thank you.
Comments
You should run this by your attorney.
Do not anticipate too soon that the employee will not return. April is still weeks away. Sometimes employees exaggerate their situation to gain sympathy or because they feel they have to. Sometimes they get up off what you [I]thought[/I] was their death bed to return to work for fear they will lose their job. If they return, you want to make sure the employee's job is still available to them. Having someone else already lined up for the position could get you into difficulties.
Just keep in contact with the employee. If she says she will be coming back on X day, then move forward as if that is true. A few days before X day contact her again and confirm that she will be returning. She may confirm she is returning, or she may ask for more time. You will have to evaluate your situation each time. If all this continues and she runs out of leave and still wants more time, then you can decide if you need to term her or give her a bit more time. Waiting is contrary to business sense, but appearing too hasty opens you up to lawsuits.
A few things to keep in mind: 1) Is there any other law that applies (ie: she needs a few more days as an ADA accommodation), and 2) are you treating her the same as other similarly situated employees (you have termed others for not returning from FMLA)?
IF there are no other laws that apply; IF you are treating her the same as you have treated others on FMLA; IF she either tells you she is not returning OR she tells you she cannot come back yet, then you can term. Send her a nice letter explaining you must fill the position, invite her to apply again when her situation changes, and wish her well.
Good luck!
Nae
We handle it by giving the employee statements regarding their leave. It depends on the circumstances as to how often we supply them. Sometimes it is a monthly statement, sometimes we give one with each paycheck. I would give this employee a monthly statement of the amount of FMLA she has used and how much she has remaining (and perhaps more frequently in the last month.) Believe me, she'll look at it. Plus, providing you keep copies you will have all the documentation you need if the situation turns sour.
Good luck!