FMLA - 12 Week Expiration

We have a facility that had an employee who was out on 12-weeks approved FMLA leave. Unfortunately, the employee exhausted her 12-weeks of leave and isn't able to return anytime soon. So, the employer is terminating (i.e. taking off the books) and filling the slot permanently.

The question we have is what should be the termination date? I had someone tell me, in the company, that the termination date should be the LAST date actually worked. I say that it should be the date the employee was scheduled to return to work (i.e. at the end of their 12 week allowance). My justification is that if the employee decided to file for unemployment OR worse, try and file an EEOC complaint for terminating while on FMLA we can show that we allowed the 12 weeks under the law. To use the date last worked would make it look like we didn't grant the FMLA leave, in my opinion.

Who's right? Thanks

sstogner
san antonio, tx

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