Terminating the Employee after 12 weeks

Eileen · July 2002

Is there any special way or wording for a letter when it comes to terminating an employee after their 12 weeks of leave are up? This is a case in which the employee is possibly dragging their feet in getting a release. I know I can ask for re-certification, but that is giving the employee "another" 15 days. I have not been able to find anything in the regulations.

LFernandes · July 2002

I just use this basic letter:

Our records indicate that your last day of Family and Medical Leave will be ___________________. You are expected to report to work on _________________at your regular time. If you do not return to work on this date, we will assume that you have voluntarily resigned from employment with us.

If you have any questions, please contact Human Resources.

PM · October 2002

Could someone tell me if the employer can mandate FMLA when the employee's doctor has returned them to work. In my case a firefighter who was scheduled for a semi-annual physical (because his last four were borderline),told his supervisor he was unable to take the physcial because he needed knee surgery and would be off work. His FMLA was approved for the knee surgery. When the surgeon released him to return to work we sent him to the company physician for his semi-annual review. Our physician said he was unfit for duty and considered his medical problems to be permanent. The employee has been on light/part time duty since while we try to sort this out. The question is, can I count this remaining time as part of his FMLA? I believe I can.

LFernandes · October 2002

Look under the FMLA Regs under section 825.220. This is the section that talks about the restoration rule with light duty assignments.

Good luck!

Pork · October 2002

I put the terminating date and voluntary termination definition in the orginial letter which placed the ee on FMLA. There is also a visit and communicate with this office every two weeks clause in the original letter which if not accomplished allow for termination in the original letter. On the morning after the "sunset" 'FMLA leave is over date', there is an automatic letter of termination of employment relationship sent out by "registered, receipt required mailing" sent out to the last known address of our X-employee. The thought here is get the appropriate action accomplished as stated in every letter of FMLA started as stated. If you need to change your actions based on new information the company has the option to listen and change; however, it becomes very difficult to defend the companies actions as to why the company did not terminate as stated. Was there an alterior motive on the company's part? Alterior motives will be the intend for discovery? May you have a Blessed day! Pork

PM · October 2002

The employee is ready to come back to work, the surgeon released him to full duty. However, our physican said he is unfit for duty due to a number of unrelated knee or work issues. The last 5-weeks we have refused to allow him to return to work until the issue of his fitness for duty is resolved. He has a new physician that seems to be saying yes he is in bad shape but he is not sure he is unfit/unsafe for duty. I'm just wanting to know if this mandated leave time can be counted against his leave time. Thanks for your insights.

Don D · October 2002

Any time that he is off work due to the suggestions of his doctor that he not work is counted as FMLA. Pork: A DOL attorney-investigator told me three weeks ago that it is considered unreasonable for an employer to require an employee to report in or constantly contact us if the physician's certification is clear in the first place.

Pork · October 2002

DD: thanks, but I will continue to challenge the employee to stay in touch with my office every two weeks and to see the physician as often as the phsician ask. I do this inorder to keep the lines of communication open between the effected employee and this office, rather than take a chance that the employee would be in contact with remote work sites about his employment or ability to do work. I take the relationship away from the work site manager, and insert HR to employee until the employee is returned ready to go to work by the physician through my office. I allow the ee to communicate socially with the remote work site, but I assume all responsibility for the employee and employer employment relationship. I control light duty and restrictions, and tell the site manager exactly what he/she can have the ee do. All of this is coordinated with the physician. By being in control and responsible, I have been able to manage the FMLA and WC employees with out legal complications and errors that would go against the company. No one in the company knows the WC and FMLA legal "hoops" better than me; no one can better jump through the legal "hoops" better than I, and ownership has challenged me to keep us out of trouble. I might be doing it wrong, but we are doing it my way. I proudly stand-up for my actions and I proudly accept my paycheck each week for the HR work that I have done and well do. I will go back to my cell for now! Oink-Oink, Pork

Don D · October 2002

Pork: You are a hoot! (The yankees will wonder what that means); but, please, no more references to the cleaning off of swine posteriors. Does your company mail out complimentary slabs of ribs by any chance?

Terminating the Employee after 12 weeks

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