Firing employee on FMLA — legally
February 25, 2009 by Sam NarisiPosted in: Benefits Law, FMLA, In this week's e-newsletter, Latest News & Views
It’s possible to terminate employees while they’re on medical leave — but extreme caution is needed. Here’s how one company did it and avoided legal trouble:
An employee asked for and was granted 12 weeks of FMLA leave. However, after about 10 weeks, she was told by her doctor that she would need extra time away from work.
When she informed her manager, the company terminated her. The employee wouldn’t have been able to return until almost a month after she ran out of leave.
However, the company did pay her health benefits for the full 12 weeks.
The employee sued, claiming she was fired after using only 10 weeks of FMLA leave.
The company argued that she wouldn’t have returned to work in time to keep her job anyway, and she wasn’t denied any benefit she would’ve received if it had waited 12 weeks to fire her.
Who won?
The court agreed with the company. It was undisputed that the employee’s doctor didn’t clear her to return to work until almost a month after she would’ve run out of leave. The company gave her all the benefits she was owed and had no reason to delay the termination.
Cite: Roberts v. The Health Association
March 4th, 2009 at 2:50 pm
Why was an accommodation not offered?
March 4th, 2009 at 4:04 pm
I can not imagine this would fly in CA. We are seeing cases go against the employer for terminating the day after the exhaustion of the 12 weeks for not offering an extention as an accommodation under ADA as mentioned above by Kim. There has also been issue with how much extension is reasonable and this has been accepted at 3 weeks or rejected as not enough in excess of 3 more weeks past the 12 as if this is decided case by case with a best guess or hindsight as you guide. At least here the post-12 weeks is not an automatic safety zone, much less pre-12 weeks. But don’t get me wrong, it is not that I did not like what you wrote but just wonder if it applies nation-wide.
March 4th, 2009 at 4:12 pm
Kim Says:
March 4th, 2009 at 2:50 pm
Why was an accommodation not offered?
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Why would the employer need to offer accommodation? No where does it say she asked to come back with restrictions. That would have been a totally different scenario.
They kept her on “active status” for 12 weeks while keeping her insurance intact. When she called to say she wouldn’t be back within the protected time frame, the employer is under no obligation to further accommodate……….
March 4th, 2009 at 4:30 pm
I am also in CA. I have been directed that an accommodation should be granted if an employee has a medical certification that provides information supporting time off to heal which would allow for the employee to RTW and be able to perform the essential functions of their job. As to the reasonable amount of time issue, I believe if the health care provider states the employee is progressing due to the accommodation there is not a length of time that can be denied unless the company’s guidelines speak to that.
March 4th, 2009 at 4:43 pm
I have been advised the same way, which seems to all but negate the 12 weeks as much more than a point at which COBRA is triggered in certain curcumstances. Where is GR? This may just be a CA issue, one of many…
March 4th, 2009 at 5:24 pm
It’s difficult enough to do without someone for 12 weeks, although as an employee, that protection is nice. But somewhere, we have to find a balance so that everyone benefits, not just the employee.
March 5th, 2009 at 8:45 am
Oh how I love Southern California…the sunshine…the attractions…the food…the employment law…NOT! I’m not in California (anymore) but we (a multi-state company) routinely do an ADA analysis to determine if we might be on the hook for the further accommodation of some additional time off which might allow the employee to return to work. If someone is out for 12 consecutive weeks and asks for more time we push back to see if that additional time might allow the employee to return to work after that…if not then we would deny the additional time and give the employee the choice of terming or returning to work. For those who cannot pass the ADA muster they must return to work or be termed.
We apply this practice across the board. I must add that these decisions are made centrally in HR-Benefits (with coordination with legal and the line of business) so the detrminations are as consistent as we can possibly make 1,000 shades of gray.
March 5th, 2009 at 5:16 pm
Exactly, so savvy MD’s know how to write the note to indicate that the extra time “might allow the employee to return to work” which is easy to say and can only be taken to task at the end of the period requeseted. It is easy to be predictive, then they can 1 more week you for a time or two. Ultimately, you have to say enough but it is always shades of gray and your “consistant as we possibly can make 1,000 shades of gray” is well stated which brings me back full circle to where this conversation began. I wish us all the bes of luck with that here on the sunny LEFT COAST. I still want to know which state GR lives in so I can consider relocation.
March 6th, 2009 at 8:17 am
GR is Grand Rapids, MI and no, we do not face the isses (Thank God!) that you face in CA. Once an employee has used all the time alotted by FMLA, the employer is not required to make further accommodation to that employee if they don’t return. Our company will do our best to hold open a position if it appears someone is making progress or attempting to get back to work, but we are not required to do so. Nromally I find with an FMLA leave, rarely do they go the full 12 weeks.
We have a situation where an EE was in a motorcycle accident (lucky to be alive) and he has been gone since June 20,2008. He and his Dr. expected him back to work mid-January, but no return. We were keeping his benefits in place and still letting him pay just his portion, even though FMLA was exhausted way before that. Now his Dr. isn’t even sure if he will be back in April or not. Meanwhile, he is out fishing, traveling, driving, etc. collecting 100% of his pay on disability. We have light duty available and have told him that. He doesn’t want to return to work so his Dr. isn’t making him. Needless to say, we terminated him. We told him he would need to make an attempt to come back to work if he wanted a guaranteed place on our payroll, however, he is just in “too much pain” and hopes he can come back within 6 months. Sorry, time’s up.
March 6th, 2009 at 9:13 am
According to our plans your guy in GR would have been terminated for one year out and offered COBRA if eligible. We actually keep someone on the payroll in a leave status (providing our disability or WC carrier supports the disability) for up to one year from last day worked. After that they are termed in our HRIS.
March 6th, 2009 at 9:57 am
He was certainly offered COBRA. In this economy, we can’t guarantee bringing him back and we are not required to keep him on our payroll so we didn’t. After his 12 weeks were up, we could have terminated his benefits, employment and offered him COBRA. We didn’t because we cared, but now the ever so sweet taste of LTD + Auto insurance $$ has poisoned his return. From here on in (unless MI changes their law), they will be termed and offered COBRA at 12 weeks and their job may or may not be there when/if they return.
March 6th, 2009 at 10:00 am
He was certainly offered COBRA after almost 30 weeks of being covered.
In this economy, we can’t guarantee bringing him back and we are not required to keep him on our payroll so we didn’t. After his 12 weeks were up, we could have terminated his benefits, his employment and offered him COBRA, but we didn’t because we cared.
Now, the ever so sweet taste of LTD + Auto insurance $$ has poisoned his return. From here on in (unless MI changes their law), any employee hereafter, will be termed and offered COBRA at 12 weeks (our policy is they need to exhaust vacation and PT concurrent with the beginning of their leave) and their job may or may not be there when/if they return.
March 6th, 2009 at 7:30 pm
This has been great feedback; it is nice to get the prospective of several different LOA Specialist as well as companies policies/practices. We also have a company policy that allows for termination at the 1 year point if an employee has not been released to duty but it does not differentiate between RTW full duty or modified work duty.
March 9th, 2009 at 7:11 am
Kim, our policy only applies to those that have not returned to work. If someone is released to modified duty or partial hours the clock stops ticking because they are earning regular wages again. If the work center cannot accommodate partial hours or the modified duty then the employee is not able to return and the clock continues to tick.
I too have found this discussion very good.