FMLA ending - employee not able to return to work at this time

AngieH

I have an employee who is going to exhaust her FMLA leave as of 2/1/02 (we measure FMLA leave from the 12-month period forward from the date the employee's leave first began - in this case, her leave began 3/20/01 and this is the third time she has used leave this year). At this point, she has stated that she has a Dr's appt on 2/15, but has not indicated when she might be able to return to work. We need to have someone working in her position, as her absence has caused great stress on her department. We would like to terminate her employment when her FMLA leave runs out. I have two questions: 1) Do we need to notify the employee in advance of our plan to terminate her employment? 2) Since the employee is not physically able to return to work before her leave runs out, are we legally able to terminate her employment? (All information I have read indicates that we can legally terminate her if she is physically unable to return to work before her FMLA leave runs out.) I want to be as careful as possible.

Thanks for the help.

Gar

[font size="1" color="#FF0000"]LAST EDITED ON 01-30-02 AT 02:45PM (CST)[/font][p]Before you do anything, consult with your legal counsel about the laws of your particular state. Some grant greater protections than those afforded by the FMLA. As far as the FMLA is concerned, yes you can terminate without notifying the employee that you plan to do so. However, not to do so would be pretty tacky. If I were the employee, it would tick me off so that I'd get a lawyer. I wouldn't have a leg to stand on, but I'd do it just to make life misserable for you. Lastly, if she has run out the string on her FMLA, you can elect not to reinstate her. However, be very, very careful because the employee could come after you with the claim that the termination is retaliation for taking the leave. Again, consult with your legal counsel on this one.

System

And don't forget the ADA. If her physical condition is that bad, she might be disabled.

James Sokolowski
Senior Editor
M. Lee Smith Publishers

Theresa Gegen TX

[font size="1" color="#FF0000"]LAST EDITED ON 01-31-02 AT 10:34AM (CST)[/font][p]It seems to me that she is out on FMLA and you need to let her know in advance the date that her FMLA will run out and that if she is unable to return to work at that time, her job will not be held for her. She may be able to get to a doctor earlier and see if she is ready to be released to return to work if she clearly understands that if she can't she will no longer have a job.

But I agree with the prior posts, that you should seek legal counsel to ensure that all your bases are covered.

Good Luck!