Terminination after FMLA ends
GLC
174 Posts
We have an ee who is having back surgery on 12/16/04. The doc said on the FMLA papers that she will be off for 3-4 months. She has been on intermittent FMLA for her back for the past year. This ee had 2 car accidents within the last 2 years. Her 12 weeks of FMLA will be up mid-February 05. According to her doc, she may not return until Mar or Apr 05. She is not a good ee. She received a very poor evaluation in 7/04. We will be coming out with a revised FMLA policy in 1/05, which states that the following about Additional FMLA Leave:
Additional leave granted beyond the 12 weeks will be at our discretion and based on the essential functions of the employee’s position. Further, it states that we may elect to fill the position of an employee who is on leave beyond 12 weeks. However, we will attempt to return the employee to the same position or to a similar one for which the employee is qualified. If suitable employment is not immediately available, the employee will be placed on unpaid leave for up to 90 calendar days. If no suitable opening is found during the 90 calendar days, the employee will be
terminated. Nothing in this section shall be construed to limit the rights of employees under the Americans With Disabilities Act. This new revision has been approved by our attorney.
We really would like to hire someone else after her 12 weeks are up, mainly because she is a poor performer. I know if she comes back she will be complaining about her back and missing more days. We are planning to hire someone for a shor-term temp assignment to cover while she is out, because she works in payroll, processing ee paychecks. This is obviously a critical job. We don't have enough staff internally to cover for that long. This will be the first time we have implemented the addtional leave policy. I wanted to know what other employers do. In the past, we have not terminated ee right at the 12 weeks. If they needed more time, we have given it to them. The longest we have given is an additional 3 months, beyond the 12 weeks.
Here are my questions.
1. Do you normally terminate at exactly 12 weeks? How flexible are you if the ee needs more time? I'm thinking if it is a couple of weeks, we would probably grant it.
2. If we have a temp person doing the job, would it seem harsh if we let her go at all? This ee is the type that would head straight to an attorney. Would an attorney wonder why we let her go when we had someone doing the job?
Any info would be helpful.
Additional leave granted beyond the 12 weeks will be at our discretion and based on the essential functions of the employee’s position. Further, it states that we may elect to fill the position of an employee who is on leave beyond 12 weeks. However, we will attempt to return the employee to the same position or to a similar one for which the employee is qualified. If suitable employment is not immediately available, the employee will be placed on unpaid leave for up to 90 calendar days. If no suitable opening is found during the 90 calendar days, the employee will be
terminated. Nothing in this section shall be construed to limit the rights of employees under the Americans With Disabilities Act. This new revision has been approved by our attorney.
We really would like to hire someone else after her 12 weeks are up, mainly because she is a poor performer. I know if she comes back she will be complaining about her back and missing more days. We are planning to hire someone for a shor-term temp assignment to cover while she is out, because she works in payroll, processing ee paychecks. This is obviously a critical job. We don't have enough staff internally to cover for that long. This will be the first time we have implemented the addtional leave policy. I wanted to know what other employers do. In the past, we have not terminated ee right at the 12 weeks. If they needed more time, we have given it to them. The longest we have given is an additional 3 months, beyond the 12 weeks.
Here are my questions.
1. Do you normally terminate at exactly 12 weeks? How flexible are you if the ee needs more time? I'm thinking if it is a couple of weeks, we would probably grant it.
2. If we have a temp person doing the job, would it seem harsh if we let her go at all? This ee is the type that would head straight to an attorney. Would an attorney wonder why we let her go when we had someone doing the job?
Any info would be helpful.
Comments
Once the 12 weeks of FMLA expires all job protection rights expire as well. At that point you have the right to fill the position if the individual is still unable to return at all but if they are able to return to some type of restricted duty you may have ADA implications.
What we are doing is notifying our employees that effective 1-1-05 employees out on approved FMLA leave who are unable to return at the expiration of their 12 weeks will have their job posted. If they are able to return prior to our filling the position, they will be placed into that position. If the position is filled they will be placed into a vacant position to which they are qualified. If they are still unable to return at the expiration of their 26-week Short-term disability payment, their employment will be terminated.
Since you appear to have a situation that would probably qualify the individual for protection under ADA, the best route to take would be to define HOW long you would approve an additional LOA, make sure she is aware of it, and follow the policy accordingly.
But, the point is you should never mix performance and FMLA, as your post indicates you are wanting to do. You do not use FMLA to get rid of poor performers. It backfires every time. You either get rid of poor performers or you don't and the mechanism for that is a disciplinary system, not FMLA. FMLA is a government entitlemena and a safety net for employees. That doesn't mix well with performance terminations.
Obviously, as other have pointed out, if there are ADA issues attached to the reason for the leave, you have to be careful about termination. However, strict FMLA interpretations do not require job protections beyond the 12 week period.