Comments on: Firing employee on FMLA — legally

By: Toadface

Toadface — Mon, 09 Mar 2009 12:11:07 +0000

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.

By: Kim

Kim — Sat, 07 Mar 2009 00:30:12 +0000

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.

By: HR in GR

HR in GR — Fri, 06 Mar 2009 15:00:41 +0000

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.

By: HR in GR

HR in GR — Fri, 06 Mar 2009 14:57:33 +0000

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.

By: Toadface

Toadface — Fri, 06 Mar 2009 14:13:13 +0000

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.

By: HR in GR

HR in GR — Fri, 06 Mar 2009 13:17:50 +0000

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.

By: HR in CA

HR in CA — Thu, 05 Mar 2009 22:16:21 +0000

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.

By: Toadface

Toadface — Thu, 05 Mar 2009 13:45:02 +0000

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.

By: Randi

Randi — Wed, 04 Mar 2009 22:24:07 +0000

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.

By: HR in CA

HR in CA — Wed, 04 Mar 2009 21:43:55 +0000

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…