I have an employee who has exhaused her 12 week leave under FMLA for a pregnacy. She continues to be out, so far an additional 6 weeks, with a doctors note saying she is not ready to return to work due to medical reasons. Are we obligated to hold her job?


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  • Are we obligated to hold open a job for an employee who has exhaused her 12 weeks leave under FMLA for maternity leave? She continues to be absent, so far an additional 6 weeks however, she has sent me doctor's notes each time she has an appointment explaining that she can not return to work due to medical reasons resulting from her labor.

  • At the time her FMLA leave was approved, she should also have been told that if the absence goes beyond the amount of leave she is entitled to, reinstatement can be denied. Was that done and what have you done in situations similar to this and, most importantly, those regarding employees who were out beyond their leave allotment and weren't pregnant?

  • You will need to look at your general medical leave policies (as the last writer stated). You want to make sure that you treat all employees consistantly. so if your company policy gives more than 12 weeks, she could be entitled to it.

    Finally, you need to check and see if your state has a seperate FMLA or pregnancy leave requirment. Sometimes these will obligate you to give more than FMLA leave.

  • When we have someone on FMLA I go over their rights and responsibilities... prior to their departure if possible. We also give the employee a printed brochure explaining the Act.

    During their leave we keep in touch periodically to see how things are going. Along with letting the employee know we care, it gives us a chance to remind them of the return policies.

    Have you contacted the employee's doctor directly to clarify questions about the extended leave???

  • It is not a bad idea to contact the doctor directly, but many states require the patient to agree to release the information. So, Unless you can get the employee to agree in writing, the doctor probably will not talk to you.

    One option you can use is to give the employee a specific form for the doctor to fill out, which asks the questions you need answered.

    Good Luck!

  • This issue has come up in our place recently. Our attorneys suggested that we send each employee a letter when their 12 weeks expires. The letter we drafted gives employees one of 3 options:
    1) Provide a medical release and return to work.
    2) provide medical documentation that continued Leave is necessary. At this point employees fall under our standard LOA policy which has a 3 month limit. or
    3) Fill out a voluntary termination form.

    We also attach a copy of the FMLA Leave form they signed which stated that they would be on a regular LOA after 12 weeks. We send the letter certified and failure to respond within 30 days results in termination of employment.

  • You have those options with or without a letter. I think formalizing things is fine but I also think that we can go overboard and damage employee relations by doing so. If the letter is too attorney-like it might turn the employee off. Personally, I would rather deal with it by personal contact and a letter to formalize what the personal contact indicated.

  • I like a letter (as do most attorneys). The letter can be written positively -- it does not need to sound like a bunch of mumbo jumbo or "CYA"ing. Having a letter (even as a follow up after a conversation), avoids a common problem in lawsuits -- different recollections of what was said. It also give the employee an opportunity to let you know whether they really understood the discussion and what is expected of them.

    The only issue I have with the form for resignation is "What if the employee refuses to resign and can't return to work?" Then you have to fire them, or even if they sign the form on threat of termination, it is no protection if they later sue. Generally in my letters, I tell the employee "If you are not able to perform the essential functions of your job, with or without reasonable accomodation, by ____ (DATE), the company will administratively close your file and terminate your employment. You will remain eligible for rehire, and we encourage you to reapply for employment when you are able to do so.

    In short, you should be proud to have any letter you write to an employee published on the front page of the newspaper (because if a lawsuit ensues, it may end up there). The letter should not be bloodless, but should show an adequate concern for the employee and emphasize that your goal is to get the employee back to work.

    Good Luck!

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