[quote user="sbrunn"]I have an employee who has exhausted his FMLA for the 12 months. He has no time left, FMLA or vacation, nothing. He is not able to come back to work. What are my options? Can we let him go?[/quote]
I don't really think that's enough information to say. Here are some questions to consider:
Have you checked which 12 month period system your policies uses? In that period, have you checked your documentation for timely notification of FMLA designation on each and every absence?
Is the nature of the FMLA issue such that this person is not likely ever to return to work?
Have you considered the company's action in any past cases in which you have or have not terminated for failure to return from FMLA leave?
Has the employee indicated an intention to return so that it's now possible there is a miscommunication about return date?
Is the employee unable to return because the FMLA related issue has disabled the employee in a manner that would invoke ADA?
Is the FMLA issue related to a work caused injury or illness?
Have you sent a letter notifying them their leave is exhausted and documented the contents of the letter and the sending date?
You have to balance several competing interests. Uncertainties in the law. Your desire not to look like your company is mean to sick people if you decision is questioned. Cost of continued health insurance coverage. Uncertainties that may exist in the documents you have. Precedence you set for handling future cases with your business.
FMLA termination is not as mechanical as it should be.