Termination after FMLA leave
NYGiants
93 Posts
I am looking for a checklist of steps to take when terminating an employee at the conclusion of his FMLA leave. The employee has not responded our notice that his leave will expire in 2 weeks. We believe that he is not able to return to work due to a serious health condition, but have not had any luck getting him to respond to our inquiries.
Thanks.
Comments
I don't have a checklist per se, but I do have a few issues you should probably consider before terminating an employee on FMLA leave:
(1) Is the employee's serious health condition one which also qualifies as an ADA-protected disability? If so, the employee may be entitled to more protection in the form of reasonable accommodation (more leave, job restructing, etc.)
(2) Is the employee's failure to return not due to a continuing health condition? If not, the employer may be able to recoup health and other benefit costs incurred during the leave period.
(3) Has the employee received all notice required or recommended under the FMLA (initial notice of rights and responsibilities)?
(4) Is the employee's health condition also a workers comp injury? If so, check your state workers comp requirements for termination of employment.
Hope this helps.
I agree with sdiconza, make sure that the employee is not disabled under the ADA. I have an employee who could not return after 12 weeks of FML. Under the ADA we had to give the employee an additional three months of leave.
I don't have a check list but I do make sure all mainings are sent certified, return receipt.
Good Luck.