Return to work from FMLA

george h

What does one do when an employee does not return to work at the end of the approved FMLA period? I just read an article which stated that H/R should make a concerted effort to get in touch with the employee to see if he/she intended to return to work. That is one situation.

The second is if the employee's reason for being out in the first place requires more time for properly healing and recuperation: what are the rights of the individual and the company? What is there beyond the mandated 12 week period?

Thank you.

System

[font size="1" color="#FF0000"]LAST EDITED ON 10-12-01 AT 08:58AM (CST)[/font][p]That's a good idea to make a big effort to reach your AWOL employee. A lot of lawsuits can be deterred by good communication with an absent employee. I've heard some HR people sending a registered letter to prove the employee knew the consequences of not returning.

If the employee's injury or illness takes more than 12 weeks for recovery, consider whether he or she is disabled under the ADA. Additional leave could be a reasonable accommodation, but he can't just go AWOL.

Also, if it's a workers' comp injury, your state's law may have something to say on this subject.

You might want to look at our HR Quick List book. Here are free sections on "You think an employee might be disabled" and "An employee has an attendance problem":
[url]http://www.hrhero.com/hrquicklist.shtml[/url]

Good luck.

James Sokolowski
Senior Editor
M. Lee Smith Publishers

Gar

Here in N. Carolina we go through a simple 5-day process whereby we send the employee three (3) registered letters requesting he/she contact us. The 2nd and final letters plainly state that failure to do so will result in termination (job abandonment). Should we subsequently learn that the employee had a good reason for failing to contact us, we will more than likely reinstate but that rarely happens.

Theresa Gegen TX

There are several cases where employers were found to have violated the ADA because they fired the employee after the fmla leave was exhausted, but did not consider whether some additional leave would be a reasonable accomodation under the ADA.

If the person is covered by the ADA as well as the FMLA, there is no specific amount of additional leave you need to give them. Rather, the court's will ask if the additional leave the person requests is required as a reasonable accomodation under the ADA. This can be a very fact intensive inquiry. One guideline that I have pulled from these cases is that if the employee needs indefinate leave (in other words, the employee cannot tell you when, if ever, they will return), the employer does not have to grant it. However, if the employee (or their dr.) can give you a specific prognosis of when the employee will be able to return (for example, employee will be able to report back to work in 2 weeks), then you need to determine whether it is reasonable to give the additional time off.

In one case I read, the employer gave the employee 4 months leave. The employee could not return at the end of th 4 months, so the employer terminated. The employee sued saying "I told them I would be able to return in 30 days, and I am disabled, so their failure to give me the additional leave as a reasonable accomodation violated the ADA." The court said the employee might be right and sent the case to a jury. Notably, the court said, since the employer could cover her position for 4 months, it probably could not show undue hardship for one more month (basically, the court used the employer's generous leave policy as evidence against it).

As you can see, this issue can get tricky pretty fast.

Good Luck

Theresa Gegen
Attorney Editor -- Texas

Andrews & Kurth LLP