Employee terminated without 12 weeks

Casper

We have an employee who is eligible for FMLA. Her child has Rett Syndrome. The child began
to have more seizures. A new plan of treatment
began and the ee wanted to stay and monitor the
treatment. She requested and received 6 weeks
of leave. At the end of six weeks the employee
did not contact the employer for two weeks. Her reason was that she could not reach her department head. The department head fired her.
The employee has filed a complaint. Do we have?
any ground to stand on.

SMace

Do you have a policy that outlines the return to work procedures for someone out on FMLA?

If you don't, what have you done in the past?

I can respond further if you answer these questions.

marc

You indicate the EE is eligible for FML, but did not mention whether or not you already jumped through the FML hoops with her for the 6 weeks leave already taken. I think she has a claim, but there could be some mitigating circumstances with respect to her not following established procedures, assuming your company has them. There is lots of paperwork that has to accompany this firing, in my opinion, and I cannot tell if your company has done so. It is also my opinion that the courts lean in the EEs favor with respect to FML cases, so unless you are airtight on your end, you will probably be in some hot water with this one. Just my opinion.

By the way, we don't allow a supervisor to terminate without some oversight. They can suspend with pay pending approval of a termination, but they cannot just fire someone. Your situation is an example of why we exercise the oversight - but we are also a small company and take the luxury of time to review these types of events.

Don D

Based only on what you provide in your post, I would say it appears you have followed the requirements of The Act. I am assuming the following: She applied for leave of six weeks and it was approved in writing. The approval form returned to her had the dates inclusive that she applied for and that you approved. Your policy is posted. She did not return at the expiration of her leave and did not contact you or anyone in supervision at the company and you waited two weeks, then terminated her employment.

I would feel comfortable verbalizing this to a DOL investigator.

Despite the fact that an investigator or many on the Forum might feel/say/recommend that it might have been reasonable/prudent/compassionate to have simply allowed her to stay out a few weeks beyond the approved time or that you exhaust all measures to contact and advise her of your intentions, The Act does not suggest that and certainly doesn't mandate it.

Rockie

Hindsight is always 20-20 in these situations as we have all found out from time to time.

Not sure why an employee would be "unable" to reach the department head if the department head was there and knew the employee wasn't there. There should always be an alternate to contact if an employee cannot reach their supervisor.

In any event, what I would have done is the first day the employee did not show up for work,I would have sent a certified letter stating "as per your approved leave request, you were expected back at work on such and such a date. You did not show up and we consider this a "no call-no show" situation" If we do not hear from you by _________, we will consider this as abandonment of your position and you will be terminated from the company."

At least this way, if the employee comes back at you, you have the certification that you sent to the employee after they did not show up for work.

I think the investigators look at "good faith" gestures in dealing with employees very favorably.