Can we terminate after FMLA is expired?

Lisa In Iowa

We have a situation where an employee utilized 12 weeks of FMLA leave two years ago for a medical condition. However, after using the leave was released to come back to work. After being back to work a few months, she needed to be off of work for a few weeks for the same condition. Because we calculate FMLA on a rolling calendar year, she was able to use FMLA for the condtion because she became eligible for another 12 weeks. She has since utilized FMLA intermittently over the past year for the same medical condition. We always made sure she completed proper paperwork and provided appropriate medical certification.

She began missing work this week, and said her doctor said she would be out indefinitely. We provided her with FMLA paperwork, and she returned it. The medical certification indicates that she now needs to be off work indefinitely because she is depressed and needs intensive treatment, not because of her previous medical condition.

The employee has another week left of FMLA, and then it will expire. In addition, she will also run out of PTO and short term disability coverage at the same time. Her rolling year for FMLA doesn't renew until June, 2008.

Because FMLA is expired, and because it indicates that she will be gone indefinitely, is it okay to terminate her employment, offer her COBRA, and explain that she is free to reapply when she is able to return to work?

We do not have an extended leave policy beyond FMLA, and have never had an employee need leave beyond the 12 weeks of FMLA. We realize whatever we do is precedent setting.

By terminating her, are violating ADA?

Thoughts?

SMace

This is a fairly complex situation that might be worth a call to a competent lawyer. Precedent is the first issue. Have you extended leave to anyone past 12 months? ADA is the second issue. First you have to determine if she is qualified as disabled. You must get that info from her doctor. Then you have to determine if it is "reasonable" to extend her leave. The reasonable decision rests on your specific business conditions. These conditions must be defendable and be able to pass the scrutiny of a jury.

Susan in La

Our State Civil Service Rules allow us to terminate an employee who exhausts sick leave and FMLA. ADA says you have to perform the essential functions of the job, and if you are off work indefinitely I would say you can't perform the job at all. We have never been challenged at the court level on such terminations. We send a Loudermill letter informing the person we are considering terminating them because they are out of FMLA and sick leave. They have an opportunity to respond. Unless their response is a full release back to work from their physician, we dismiss them with a final letter. A few have appealed to the Civil Service Commission, but since we follow the rule and give them notice and a chance to respond, we have never lost an appeal.

stilldazed

To echo Mace, this can be a complex issue, but you can terminate, especially if you have no history of having extended extra leave to others in the past.

I would suggest that you take careful steps, and by all means call an attorney if you have any doubt. My organization has a history that is slighttly different whereby we have allowed extra or non FMLA time off. In cases where FMLA has bee exhausted, we have chosen to change the worker's status tp part time and Cobra benefits, continue dialog with the worker, fill the position vacated by the LOA, and let the worker know that indefinite LOA is not an option, even in ADA it's not a reasonable accomodation. If the doctor cannot give anything more absolute than "indefinite" or "unforseeable at this time," we discharge the worker with a written message explaining the circumstances and inviting the worker to apply for re-employment if/when his/her condition changes. At that later date, if we find ourselves there with a re-application and a vacancy for which the returning worker is qualified, we require a medical stmt confirming fitness for duty or confirmation that the worker can perform essential duties.

best wishes

Lisa In Iowa

Thank you all for your wonderful feedback!

I just thought I'd follow up. We did inform the employee that their FMLA and company paid leave had expired, and that we would be filling their position. We then placed the employee on an extended leave, offered COBRA for benefits, and asked for clarification from the employee's doctor regarding the minimum and maximum amount of leave needed. We did receive somewhat better clarification, felt that leave requested at that point was an amount we could accommodate, and are hoping the employee should be able to be released to work within the next few weeks. At that time when we receive medical documentation releasing her to work, we will review the openings that we have with the employee, and if interested, she will be able to apply for one of those openings.

I appreciate all of your help!

stilldazed

Thanks for the follow up. Win/win! I like those. They help you look to mgmt like you are getting your job done effectively, and you don't make enemies with the workers. Best of everything. Congrats!