Can You Legally Terminate An Employee Who Does Not Return To Work After FMLA Leave 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 circumstances that need to be reviewed carefully by the employer. Employers must also have a sense of how courts have interpreted the rights of the employee under these circumstances.

When assisting organizations 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 an employer 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 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:

• Engage the employee in an interactive process to determine how much additional time is being requested.
• Review the employee’s revised medical certification to see how much additional time is actually necessary. Unlimited leave is not considered a “reasonable accommodation.”
• Review and document how the employee’s request for leave impacts your business and operations.
• Determine whether continued leave poses an undue hardship.
• 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 employer-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 filed nationally. In 2013 that number more than doubled to 992. 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.

This article is intended for general information only and should not be constructed as legal advice. Contact PMP with any questions regarding FMLA matters by emailing Mark@pmphr.com or calling (516) 921.3400.

About Portnoy, Messinger, Pearl and Associates:

Portnoy, Messinger, Pearl and Associates, Inc. (PMP),  the oldest labor relations consulting firm representing management on Long Island, was founded in 1964 by former union organizer and worker’s rights advocate, Murray W. Portnoy.  Initially, Murray offered human resource consulting and union contract negotiating services to a handful of clients. Today PMP has a full staff of experienced and talented human resources and labor relations consultants, labor and employment attorneys, and administrative personnel. Murray Portnoy’s values and vision remain at the core of PMP’s mission and principles.

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