Sample of FMLA Term Letter

Dgross · February 2004

We have an employee who will be exhausting their 12 weeks of FMLA soon. We will be terminating this employee (first time ever for our company). I was hoping someone would like to share a sample letter for terminating an employee in this situation. Thanks for any input.

KP68 · February 2004

I too am interested in seeing this letter (strictly for proactive measures!).

Dgross · February 2004

So far, I have not received in response regarding a sample letter. Does that mean no one out there has ever terminated after the 12 weeks has been exhausted?

Carey · February 2004

We are very careful when terminating someone who has taken FMLA. You need to make sure the reasons for the term are very well-documented and have nothing to do with the FMLA leave. If you are terming the ee because they have indicated they will not be able to return within the 12 weeks, then you might want to make sure they are not ADA qualified. If they are, then extending the leave of absence might be a reasonable accommodation.

We have RIF'd people upon returning from a protected leave, but usually it's been a clear case of job elimination. Then we often still get a charge to respond to. We typically do not send termination letters. If I were in your situation, I would be working with our attorney to draft a letter and make sure we were okay with the termination.

KP68 · February 2004

Now that I think about it, it seems that we did this a year or two ago, however it was a job-abandonment issue, i.e. violation of company policy and grounds for termination.

Dgross · February 2004

This situation relates to the fact that she has exhausted the 12-week allotment. She has indicated that her physician says she will not be able to return to any work for at least one year. We have decided to terminate only because of the 12-week issue.

Carey · February 2004

Just be sure you comply with company policy and that you have been applying them consistently. Do you have any other leave policies that might apply, personal leave or disability? If she's ADA qualified and depending on the type of company and position, a year leave might not be an unreasonable accommodation.

Nat · February 2004

[font size="1" color="#FF0000"]LAST EDITED ON 02-27-04 AT 11:09AM (CST)[/font][br][br]I do some version of the letter below when terminating someone not coming back from an FMLA leave. It may vary depending on the situation but this is the basic letter. Hope this helps.

Date

Jane Doe
111 FMLA BLVD
Anywhere USA, 22555

Dear Jane:

As you are aware, your Family and Medical Leave expires on _________________. In compliance with the Family and Medical Leave Act, because you are not able to return to work at this time, your position at Company Name will be terminated effective _____________. When you are released to return to work, you may reapply.

You will receive information regarding the continuation of any benefits for which you may be entitled from the Benefits Coordinator.

If you have questions regarding any of the above, please do not hesitate to call me at 999-9999.

Sincerely,

Dgross · February 2004

Thank you so much. That was exactly what I was looking for!

POPEYE · February 2004

Carey from CA has a very valid point. I would NEVER mention FMLA and TERMINATION in the same letter. I do send out a letter advising an EE that they have or are about to exhaust their entitlement hours and that any absences after (date) will subject them to the companies attendance requirements. Then their termination would become effective as any other for violation of attendance policy.

Don D · February 2004

[font size="1" color="#FF0000"]LAST EDITED ON 02-28-04 AT 09:50AM (CST)[/font][br][br]I have had the misfortune of having to do this twice. Because it is essential to continue a smart and legal paper trail, a letter is not only sensible, but serves multiple purposes in the employer's best interest. You may very likely be called upon by a DOL investigator to explain exactly what, when, how and why you did, said and concluded when you terminated the individual who was out on FMLA. Because I didn't want a cold letter to hit blindly, I called both employees first. The two letters I have sent were along this line and were, of course, sent registered mail.

Disclaimer: We have no State Add-On FMLA.

"Dear:

As we discussed in our telephone conversation of June 18, your maximimum allowed period of absence under Family and Medical Leave (FMLA) has been reached and expires on June 20. During that call, you told me that you could not return to work. Since you are unable to return to work at this time, your employment is being terminated effective June 25.

I am enclosing additional copies of our FMLA policy, the approval of your application dated March 12, our letter to you dated May 21 giving you a status update regarding your leave, and our letter of June 11 notifying you of the approaching end date of your FMLA period.

Since you are not returning to work at the end of your approved, maximum allowable FMLA period of absence, our policy does not allow employment continuation. You are welcome to re-apply for employment at a later date, should you so desire.

Sincerely,"

This mailing documents and references a final phone call, provides the employee with second copies of relevant documents for her review and file, references the contact and followup events subsequent to the beginning of the approved leave, cites policy and allows re-application. It documents professionalism and good program administration. It also is as employee-friendly as is possible in a termination. An investigator would not be displeased with the contents of the letter and would conclude that it was more than proper.

Each document referred to in this letter is stapled to the office copy of this letter so that it's all in a neat package for reference or defense at a later date. Be sure you also have the Post Office's return receipts right there as well.

Don D · February 2004

I just read where it was stated that 'a year of leave might not be an unreasonable accommodation'. If the individual cannot come to work on some basis, she is not (federally) ADA protected. She is not a qualified individual with a disability if she cannot report to work. Unless some state specific law would offer this bizarre amount of protection, that would be an unreasonable accommodation.

Carey · March 2004

A leave of absence is considered a type of reasonable accommodation under the federal ADA unless it would create an undue hardship.
[url]http://www.eeoc.gov/facts/accommodation.html[/url] on the EEOC site gives information about some of the different types of reasonable accommodation. I know it sounds illogical, but there it is. This site also discusses how an employer with a no-fault leave policy cannot automatically terminate an employee who has been on leave for a certain amount of time if that employee is ADA qualified and needs additional leave as a reasonable accommodation (unless the employer can offer another effective accommodation or show the leave would cause undue hardship).

Indefinite leave is not a reasonable accommodation, so at the point an employee's doctor says they don't know when the employee will be able to return to work, we can then terminate them.

Again, this might not be an issue for you, but before we terminate, we make sure there is not an ADA issue.

Sample of FMLA Term Letter

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