FMLA - Employee unable to return

marcial · June 2002

I have an employee that went out on FMLA in October 2001. She was not able to return after 12 weeks. June 2002, we sent her a letter informing her that her employment was discontinued and to reapply when she was able to return to work. Have I met all the obligations to the law and to the employee? She has retained legal counsel.

Don D · June 2002

Based on what you posted, I think you've met your obligations. Unless your state law allows the ee to remain out after FMLA. I think you're safe, IF: All the FMLA paperwork was properly done, you gave her an approval in writing which stated the max FMLA time and an expected return to work date, gave her information telling her how long FMLA would run, then informed her that FMLA was exhausted, advised her to return to work, she made no attempt to communicate a continuing illness, has no obvious disability, has requested no accomodation nor indicated that she's seeking treatment that might suggest a disability, I would see no obligation to continue on with her twisting in the wind. I'm wondering why you didn't send your letter to her in February though. That's not a fatal error but did allow the situation to languish an additional 5 months. If, after FMLA, she never suggested a disability with an ability to return with or without accommodation, I think you're safe. Lots of assumptions on my part, but, if none of this raises a flag, I would stand with the termination and tell her lawyer to call yours.

Margaret Morford · July 2002

If she is out on FMLA due to her own serious medical condition, you probably ought to determine whether she has a disability under the ADA. A reasonable accomodation could be an extension of leave time. You should at least have a documented discussion with the employee if ADA applies. Also, watch out when she re-applies. Do not take into account the time she was off as a reason not to rehire. She'll sue you for retailation for exercising her FMLA rights. However, if she is physically unable to perform her old job, that's a justifiable reason not to rehire.

Margaret Morford
theHRedge
615-371-8200
[email]mmorford@mleesmith.com[/email]
[url]http://www.thehredge.net[/url]

Don D · July 2002

I agree with most of what Margaret says; however, x:-) posts to the forum often indicate that the EMPLOYER 'ought to determine' something or other and it sounds almost as if the duty is unilateral. Granted, together the employee and employer generally have the obligation to explore ADA and reasonable accommodation, in concert. If the employee, though, has been informed that she has a continuing obligation to keep the employer informed reasons why she cannot return following FMLA, or has even informed the employee that the employer must hear from the treating physician regarding the ee's ability to work and NOTHING has been forthcoming from the employee after a reasonable period of time, I feel the employer is safe to terminate. We had this precise situation where FMLA was exhausted and the ee was given by certified letter precisely our expectations and his obligations and rights and nothing followed. On advice of counsel we did proceed with termination.

Margaret Morford · July 2002

I absolutely agree with Don D. If employees don't respond or furnish information, you can terminate. They have obligations to keep the employer informed. However, some employers will terminate at the end of FMLA for the employee's serious health condition and get blind-sided with ADA. If the employee doesn't respond to a request for information to determine whether they qualify for ADA or to discuss a reasonable accomodation, I see no problem in terminating, but you need to make sure you have written documentation that you tried to pursue this.

Margaret Morford
theHRedge
615-371-8200
[email]mmorford@mleesmith.com[/email]
[url]http://www.thehredge.net[/url]

HR in VA · July 2002

For future reference...I thought attendance was an essential function of the job. If the employee is not working, how is she "qualified" under ADA?

>If she is out on FMLA due to her own serious medical condition, you
>probably ought to determine whether she has a disability under the
>ADA. A reasonable accomodation could be an extension of leave time.
>You should at least have a documented discussion with the employee if
>ADA applies. Also, watch out when she re-applies. Do not take into
>account the time she was off as a reason not to rehire. She'll sue
>you for retailation for exercising her FMLA rights. However, if she
>is physically unable to perform her old job, that's a justifiable
>reason not to rehire.
>
>Margaret Morford
>theHRedge
>615-371-8200
>mmorford@mleesmith.com
>[url]http://www.thehredge.net[/url]

Don D · July 2002

It is. But being absent possibly due to an ongoing ADA related condition that hasn't all been fully explored or identified yet is one thing. Saying I can do the job with accommodation but I can't show up for work is another. The latter tends to disqualify ADA coverage because generally she wouldn't be 'qualified'. The former is in the process of full exploration to find out just what the situation is before making a decision one way or another. At least that's my read on it.x:-)

Margaret Morford · July 2002

Okay, let me flesh out what I meant. Let's say an employee is out on FMLA for his/her own serious medical condition. The employee runs out of FMLA after twelve weeks. But what he/she has a a serious medical condition turns out to be a disability under ADA. If the employee tells you that according to their doctor, they need two more weeks of treatment and/or recovery time and then should be able to return to their job, it is probably a reasonable accomodation to extend their leave two weeks in order to allow them to return to work. What is a reasonable amount of time to wait? Who knows, but I think you'd get skewered if you didn't offer the two week extension as a reasonable accomodation. Hope that clears things up. If not, feel free to call me to discuss this.

Margaret Morford
theHRedge
615-371-8200
[email]mmorford@mleesmith.com[/email]
[url]http://www.thehredge.net[/url]

FMLA - Employee unable to return

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