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Can You Legally Terminate An Employee Who Does Not Return To Work After Their FMLA Ends?

If you are a private employer with 50 employees or more, you must be aware of both the Federal and your state’s version (if any) of the Family and Medical Leave Act (FMLA), and the paperwork that goes with its administration.  FMLA guarantees certain employees up to 12 workweeks of unpaid leave each year with no threat of job loss (some states are more generous and offer higher amounts of unpaid leave).  FMLA also requires that employers covered by the law maintain the health benefits for eligible workers just as if they were working.

Like any workplace regulation, there are always unusual circumstance that need to be reviewed carefully by the company and employers must also have a sense of how courts have interpreted the rights of the employee under these circumstances.

When assisting companies with FMLA administration, employers often ask PMP how to handle an employee who cannot return to work after the FMLA ends?  At this point, the employer is left in a quandary — does it terminate employment because the employee cannot immediately return to work, or does it consider approving more leave than the 12 weeks provided for under the Family and Medical Leave Act?  Before an employer does either of the above it should analyze whether the Americans with Disabilities Act (ADA) or other workforce regulations could affect the decision.   How a company handles these requests could mean the difference between a grateful employee or an expensive lawsuit.

In order to be able to determine if you must grant the additional leave as an ADA accommodation, you must first determine whether the employee’s condition qualifies as a disability under the ADA.   The employer should review the request keeping these five points in mind:

  1. Engage the employee in an interactive process to determine how much additional time is being requested.

  2. Review the employee’s revised medical certification to see how much additional time is actually necessary. (Unlimited leave is not considered a “reasonable accommodation”)

  3. Review and document how the employee’s request for leave impacts your business and operations

  4. Determine whether continued leave poses an undue hardship

  5. Review past practices

Employers should be very reluctant to terminate an employee solely because the employee has exhausted his or her FMLA or some other company-provided leave.   Employers should evaluate each request on a case-by-case basis and be able to defend any decision that denies the extension of leave.

According to a recent article, FMLA lawsuits have been steadily increasing.   In 2012, there were 406 new federal FMLA cases file nationally; in 2013 that number more than doubled to 992; and, in 2014, there were 1,115 FMLA lawsuits filed.   If you are unsure of how to interpret the FMLA, ADA or other workplace regulations it is prudent that you contact an HR Professional who is well versed in these laws.  For a small consulting fee, you may be able to avoid a very large lawsuit.  Which makes more sense – consulting or litigation?  That’s a no-brainer.


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