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Workforce Management Community Center Forum Index � � Legal Forum � � FMLA expiration (answered by EBG)

Author	FMLA expiration (answered by EBG)
trunnion Joined: Sep 13, 2001 Posts: 252	Posted: 2002-09-18 13:18 We currently have an employee whose FML is due to expire 10/7/02. His doctor states that the employee cannot return to work until 10/30/02. The problem we have is that we don't want to terminate the employee at the end of his 12 weeks; however if we extend his leave beyond the 12 weeks we would have to be consistent with other employees and do the same for them. Is there any way around keeping one person beyond the 12 weeks without setting a precedent for someone else? Thank you.
clapierre Joined: Sep 13, 2001 Posts: 254	Posted: 2002-09-19 04:31 FMLA does not say that the employee is automatically terminated at the end of 12 weeks. FMLA says that they can not be terminated for using that 12 weeks. Many companies will extend leave if it is only for two or three additional weeks. While you do need to be concerned about consistency, once FMLA has expired you need to look at each situation individually.
ForumHosts Legal Forum Host Joined: Jul 09, 2002 Posts: 825	Posted: 2002-09-19 07:21 The prior response correctly points out that the FMLA does not require an employer to terminate an employee who takes leave after the expiration of FMLA leave. What you can conclude is that any leave taken after FMLA leave has expired is not FMLA-protected leave. It is possible, even though FMLA leave has expired, that the employer is legally required to allow additional leave. For example, under the ADA (or a state or local anti-disability discrimination statute), a court could conclude that additional leave is required as a reasonable accomodation. Indeed, the FMLA regs. provide that FMLA leave provisions are "wholly distinct from the reasonable accommodation obligations of employers" under the ADA, and that "the ADA allows a indeterminate amount of leave, barring undue hardship, as a reasonable accomodation." Of course, the employee would have to prove that s/he was disabled within the meaning of the statute, otherwise qualified, and that an indeterminate leave was a reasonable accomodation in his/her case. Now, you could also have constraints with respect to giving additional leave-- as "clapierre" points out, "you do need to be concerned about consistency." For example, if you gave this employee additional leave when not required to, and then denied additional leave under similar circumstances to another employee, that employee may claim that you treated him/her differently because of a protected characteristic. Contact employment counsel to help you figure out what option makes the most sense for your company in this situation.
fdarylwilkinson Joined: Jul 18, 2003 Posts: 1	Posted: 2003-07-18 07:41 I started a job and had to miss 2 days due to court.I wasn't done with my probation and they terminated my employment.Can they do this and can I receive unemployment?
LSchmid Joined: Feb 05, 2003 Posts: 245	Posted: 2003-07-18 12:09 As far as terminating you, they can unless the reason falls under some type of discrimination which this doesn't sound like. You probably should have notified the employer BEFORE you started of your need to miss work. Missing two days right off the bat just doesn't look good. As far as unemployment, it depends on what state you are in, and what the reason(s) for leaving your last job were. Best bet is to contact the unemployment office for your state to determine your eligibilty.
clapierre Joined: Sep 13, 2001 Posts: 254	Posted: 2003-07-18 13:01 Jury duty is protected. You can not fire people for serving and you cannot dock their pay-unless they are reimbursed by the court.
uksarge Joined: Jan 08, 2002 Posts: 380	Posted: 2003-07-18 16:06 Last time I checked, seven states do not have a public policy exception to at will employment doctrine and I believe employers in these states could legally terminate in this situation.
LSchmid Joined: Feb 05, 2003 Posts: 245	Posted: 2003-07-21 05:42 Clapierre - I don't read anything in the post regarding court that states the employee had to report for jury duty. I was addressing the issue of the EE needing to go to court for some other reason. As far as docking an employee's pay, I believe each state has it's own regulations regarding this issue. In WI, you are NOT required to pay an employee for jury duty, although many choose to as a benefit to their employees.
ForumHosts Legal Forum Host Joined: Jul 09, 2002 Posts: 825	Posted: 2003-07-24 05:55 (In response to "fdarylwilkinson") There is actually a fair amount of missing information here. Why did you miss work? While clapierre (not unreasonably) interpreted your explanation as a reference to jury service, that may not be the situation. For example, did you have to go to court as a litigant (either civil or criminal), or as a witness? Had you been subpoenad? Which court (federal or state) did you have to miss work to attend (whether for jury service or otherwise)? Other questions come to mind. You explain that you were on "probation". While some private employers do use that term (and there are reasons why private employers would not want to do that), "probation" is often a term in governmental employment, where there may be civil service applicable to termination, etc. As for unemployment insurance, the rules vary from state to state.