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FMLA/STD
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I have an employee that since his start date has been out on Dis./FMLA 3 times. He's been out approximately a total of 18 weeks (well above the yearly total of 12 weeks allowed by FMLA).&nbs
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FMLA/STD
posted at 4/19/2012 11:20 AM EDT
on Workforce Management
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Posts: 2
First: 4/19/2012 Last: 4/19/2012 |
I have an employee that since his start date has been out on Dis./FMLA 3 times. He's been out approximately a total of 18 weeks (well above the yearly total of 12 weeks allowed by FMLA). He was due to come back on 4/6/12. He has not communicated untill yestarday wjhen he left a message to HR. Is there any pitfall in terminating his employement? |
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Re: FMLA/STD
posted at 4/19/2012 12:25 PM EDT
on Workforce Management
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Posts: 222
First: 9/29/2011 Last: 5/15/2013 |
FMLA only protects the employee's job for the 12 weeks of annual FMLA leave (although some states may have a more generous FMLA law which would supersede the Federal FMLA). However, there may be a number of potential gotcha's if you terminate his employment. 1. Was your employee officially on FMLA? That means he did the paperwork and had all the appropriate notifications what FMLA entails. 2. Given the amount of FMLA, is there an ADA condition? Has the employee requested an accomodation? 3. What precedents are there for terminating the employee in your organization? Have you terminated other employees who have not returned from FMLA or have you granted FMLA above and beyond the required 12 weeks? Have you granted leave without pay for employees who have exhausted FMLA? Was additional leave requested in this case? 4. What provisions were there for the employee to return and/or notify his supervisor of his intent to return? Since the employee should've returned 2 weeks ago and you're only now hearing from him, I think you'd be safe terminating for job abandonment. But you need to consider the points above before you do. |
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Re: FMLA/STD
posted at 4/19/2012 3:34 PM EDT
on Workforce Management
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Posts: 2
First: 4/19/2012 Last: 4/19/2012 |
Your points are well taken. I did not issue an FMLA letter/information on his last leave. He clearly had used his 12 weeks. He wants to come back to work now with accomodations. He has been instructed verbally and in writing that he needed to provide information/documentation in writing form his physician. In addition to all this, his position has been eliminated due to cut backs. We have not extended any LOA to employees in the past so we would not break any precedent. I guess terminations are never "safe" especially with FMLA/ADA issues involved. But this is definetly a case that stretches any employer's good intentions. I apprecite your post very much.Thanks and have a good day! |
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Re: FMLA/STD
posted at 4/20/2012 3:35 PM EDT
on Workforce Management
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Posts: 215
First: 9/20/2011 Last: 5/14/2013 |
In Response to Re: FMLA/STD: Your points are well taken. I did not issue an FMLA letter/information on his last leave. He clearly had used his 12 weeks. He wants to come back to work now with accomodations. He has been instructed verbally and in writing that he needed to provide information/documentation in writing form his physician. In addition to all this, his position has been eliminated due to cut backs. We have not extended any LOA to employees in the past so we would not break any precedent. I guess terminations are never "safe" especially with FMLA/ADA issues involved. But this is definetly a case that stretches any employer's good intentions. I apprecite your post very much.Thanks and have a good day! Posted by gstrsc5432 A couple of follow up points: ""He has requested accomodation."" This puts you on notice and termination at this point COULD be seen as your illegal reaction to his request. If you could perceive him as disabled that is as good as being disabled. ""His position has been eliminated"" At first blush this COULD be interpreted as retaliation for his condition. Was this job elimination part of a larger set of layoffs in his department or is he the only one being laid off from this supervisor? |
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Re: FMLA/STD
posted at 6/7/2012 12:10 PM EDT
on Workforce Management
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Posts: 5
First: 6/4/2012 Last: 3/1/2013 |
In Response to FMLA/STD: [QUOTE]I have an employee that since his start date has been out on Dis./FMLA 3 times. "Since his start date"? I believe FMLA rules state an employee is only eligible after one year of service. If this is true, he should never have been granted FMLA in the first place. But since he has, you likely will have to follow through. However, FMLA grants only 12 weeks of FMLA, after which he can be terminated. |
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Re: FMLA/STD
posted at 6/20/2012 4:34 PM EDT
on Workforce Management
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Posts: 1
First: 6/20/2012 Last: 6/20/2012 |
In Response to Re: FMLA/STD: While terminations under FLSA/STD are difficult, they are not impossible. The most important thing to remember is that your case must be built on solid, non-refutable facts. I would recommend that you construct a log of events, beginning with his date of hire, job responsibilities, probationary evaluations from supervisors, any safety issues, any conflicts with management/ co-workers, etc.; in short, a general overview of the applicant and the work environment. Include a timeline of events: Dates of leave, Reason, Request for FMLA leave, Duration of each absence, Documentation of such absence (medical reports, hospital bills, statements from third parties with knowledge of the events requiring the absence), etc. Research Company Policy and Procedure regarding FMLA leave, and disciplinary action where the Leave has been fraudulent or abused. When did he mention an accomodation (before or after his notification of absence), What type of "accomodation", What reason for the "accomodation" (physical, mental, religious, other), How would the "accomodation" impact the Company (create an unnecessary financial or other burden), How long has he worked without mentioning an "accomodation". Contact the insurance carrier to determine the type of claims (worker comp as well as personal indemnity), if any, submitted on his behalf. Further, research the Company's termination history: who, when, why. I suspect that most will be discipline cases, and a majority of those will involve absences. I caution you to be careful; don't let emotion prod you into a "knee-jerk" reaction. Build a case, but if the facts show that the infraction is not serious, or without precedent, you may have to settle for "progressive discipline". |
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