The Family and Medical Leave Act (FMLA) provides 12 weeks of unpaid, job-protected leave to employees who need to recover from a serious illness, or who need to care for a family member's serious illness. But if an employee's FMLA time has run out and they have yet to return to work, what happens? Fortunately, the HRpros at Inflection HR's HR Support Center receive questions like these every day. Here's what you should know:
Q. Can we terminate an employee who has not returned from FMLA Leave?
A. Communication from both the employer and the employee is critical to the success of leave that is protected under the Family Medical Leave Act (FMLA). This is especially true if the employee’s expected return date is before her full FMLA allowance would be used. In that situation, it is possible that the continued absence would be protected FMLA leave, so you should make every practical effort to contact the employee, by phone, email, and certified mail. All efforts to contact the employee should be documented.
You should also consider whether the employee may be protected under the Americans with Disabilities Act (ADA), even if all FMLA protected leave has been taken.
FMLA issues can often prompt an ADA analysis. If you think there is any possibility that the employee would be considered disabled under the ADA based on your objective knowledge (and especially the reasons given for the initial FMLA leave) you should also be reaching out in an effort to start the ADA interactive process to determine if she is disabled and if there are any reasonable accommodations that can be made.
You may be able to sever the employment relationship if the employee is completely unresponsive within a reasonable period of time. However, prior to termination, we recommend that you make written attempts to reach the employee via certified mail, return receipt requested, and document those attempts in her personnel file. While the “reasonable period of time” may be dependent on the particular situation, generally two weeks from the confirmed date of receipt of the certified letter would be an acceptable amount of time to wait before proceeding with termination for job abandonment. You should also ensure that no contract, state specific regulation, or other protection (such as workers’ compensation) would require additional allowed absence, sick leave, or a different termination procedure.
Following this procedure shows "good faith" on your end. Acting in good faith and documenting your good faith efforts may provide you with protection should you ever be challenged with regard to your decision to terminate this employee.
Even if the FMLA protected leave is exhausted and no ADA protections are available to the returning employee, you may choose not to treat the failure to return from FMLA leave in exactly the same way as other job abandonment is treated. By giving the employee who has failed to return from leave a week or two to explain the absence, you can ensure that all parties are in agreement about the expected return date and that additional protected leave is not required. However, if you do decide to apply your regular job abandonment policy in this situation, you should make sure that you are giving the non-returning employee the same number of missed work days and attempts at communication before termination that you would give to any other employee, or have given to other employees in the past.
This content is intended for educational purposes only and should not be considered legal advice.
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