Terminating Employee / FMLA
Mrs_ HR Texas
6 Posts
We have an employee who had surgery in September 2011 and filled out FMLA paperwork and was granted leave. Employee is still out so he exhausted leave in '11 and '12. We have been carrying his medical all this time and the employee has not paid any of his premiums to the company. We would like to terminate him as he won't be able to do his job any longer and I feel that he is no longer protected under FMLA nor ADA.
Is this a correct assumption? If we can terminate; is there a sample letter or certain wording I should be aware of?
Is this a correct assumption? If we can terminate; is there a sample letter or certain wording I should be aware of?
Comments
Before you can decide on termination, there are a few things you should consider.
- Was the employee given all required FMLA information, which informs them of the 12 week maximum?
- Are there any ADA considerations for which an FMLA extension may be considered reasonable accommodation?
- Has the employee been provided notice that they are being asked to appear at work by "x" date?
- What do your policies say concerning failure to return to work following leave?
Based on your answers to those questions, it may be OK to terminate, but make sure you've done your due diligence!
Ok back to business... :back to topic:
We did give him FMLA paperwork that outlined the 12 week maximum. He did not do a good job in keeping us updated and I've had to request paperwork from the doctor. This doctor has continued to keep him out of work since a full recovery has not been made so we have not given him a return to work by X date.
This particular employee's job function is a construction labor/painter and being his issue was with his back I don't see how a reasonable accomodation for his job function could take place. I could be wrong on this; I appreciate any thoughts.
We do not have a policy in place related to this. I am in the process of revamping our company policy book and will now look into adding a failure to return to work policy. Our FMLA policy does state that we require the employee to pay his share of the medical premium but we did not enforce it and our president wants to change that policy to carrying an employee's medical premium for a maximum of 4 months.
We've carried him for too long so we just want to stop the bleeding but want to be absolutely sure we are within our right to do so.
Why can't things be easy???
If it were me, I would send the employee a letter via certified mail stating that he must return to work in 2 weeks (or some other date), and that failure to return to work by that date will result in termination of employment.
Now, that being said, I do not know the entire details of the situation, therefore I [B]highly [/B]suggest you speak with an employment attorney if you are in the least bit uncertain about this termination. There's nothing worse than allegations that you've violated their FMLA rights!
As for the employee premiums - if you terminate him you're probably out of luck on recouping the lost premiums. Definitely one of the downsides to a lenient policy!
Good luck and let us know how it turns out!
1) if he's unable to work contact me for other options OR
2) if he chooses not to return to work to contact me.
I'm giving him up to the 15 day period end date to respond then I will proceed with a termination letter.
Is this a correct assumption? If we can terminate; is there a sample letter or certain wording I should be aware of?[/quote]
Your first post! Welcome to the Forum. :welcome:
Sharon
It sounds like your FMLA is based on calendar years rather than revolving methods like looking forward or looking backward. I highly suggest you change your policy so you don't run into 24 weeks off in a row again. 12 weeks should be plenty for anyone who is not in an ADA situation.
It sounds like you have been paying for this employee's coverage for basically 6 months. Most employers do not pay the employee's share. If your employer wants to cover 4 months for everyone, that is fine. But you may have set a precedent where employees expect you to cover them for 6 months. If this is the first time it has ever happened, then you can tell the employee they have to pay their share immiediately for those 2 months and tell the carrier they need to go back 2 months until the employee pays.
If this is not the first time, you need to get your policy in writing ASAP and communicate it clearly and repeatedly to the employees so you don't end up in a lawsuit when the next employee doesn't get 6 months.
While it seems obvious to us all that someone with a back problem will not be able to work in construction or paint, the courts will not handle it so obviously. They will remind us that we are not doctors. So you still need to go through the interactive process for possible accomodation even if the answer is obvious. This is, of course, only if he responds to your letter. If he doesn't then you are off the hook.
Finally, don't forget the COBRA implications.
Welcome to the Forum!
Nae
Our current policy states that the employee will have to pay their share of their insurance premiums, our FMLA paperwork stated that, but we didn't enforce it (MISTAKE I KNOW. Our president is generous and doesn't want to put hardships on anyone, I'm working on showing him to be in compliance ties our hands sometimes) and in the letter we asked that the employee pay all his share for the time he has been out. We do intend to write a policy that we will stick to from this point forward based on this experience. I'm guessing we just have to see how it plays out.
I'm worried about setting the precedent though. If we write a policy to include carrying an employee's share of health insurance premiums for 4 months would that take care of the p word if one had been set?