FMLA

durasupreme

An employee's 12 weeks of FMLA leave is up today. He indicates his doctor won't let him return to work until the end of March (another 6 or 7 weeks). Should we terminate his employment due to exceeding FMLA, request additional medical certification, allow him to remain out but replace him and then offer him a different position (possibly in another area or job) when he is able to return?

WT

The 12 weeks are what you are required to give by law. What sort of an employee is this? An excellent employee is hard to find and well worth waiting for. A marginal employee or a poor employee you may well want to let go.

RHL

[font size="1" color="#FF0000"]LAST EDITED ON 02-11-02 AT 09:30AM (CST)[/font][p]You didn't indicate whether your company has any other type of leave available to its employees when they are sick, other than FML. Do you offer any other type of paid or unpaid leavem, for illnes? For example, if this employee had been in a serious car accident and unable to return to work for 5 months, what would would have been his/her job status? If you any other type of leave (for purposes of illness) be it paid or unpaid, you need to follow your policies regarding such leave.

Although seemingly a good idea on the surface, I would not use work performance a criteria for deciding whether to extend leave in this situation. Work performance can be a subjective criteria which can cause problems if it is used for a negative employment decision against an employee. In other words, if you deny one employee and use work performance as the basis, he/she will call to question the work performance of others who were granted this benefit. In a discrimination complaint, using work performance as a basis to deny medical leave could be problematic.

Margaret Morford

First, check your state law and make sure it doesn't give more FMLA time than the federal.

Second, decide whether this person would fall under ADA. If so, then you need to explore whether an extension of 6 weeks would be a reasonable accomodation.

Third, if you do terminate, tell the employee he/she is welcome to come back and reapply for any open positions when he/she is released to come back to work. You treat him/her like any other previous employee reapplying. If he/she had a good work record, you would want to rehire. If not, you would not rehire. If there's no documentation in the file of bad work performance, I recommend that you rehire or he/she may bring an EEOC charge claiming that you are punishing him/her for exercising his/her FMLA rights by not rehiring. If the file has nothing in it, you're going to have a hard time justifying not rehiring into an open position.

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

durasupreme

No other paid leave is available.

RHL

Dura, thanks for clarification regarding availability of additional leave. I concur with Margaret's advice. If you have no other leave or no policy covering this situation, and employee is still not medically released to return to work, then you may have no other choice but to separate. I also agree with her advice regarding return to work options once employee has been medically released. If they are a "good" employee without disciplinary problems, I would be inclined towards rehire even if it was in a different position.