The Family and Medical Leave Act (FMLA) provides 12 weeks of unpaid, job-protected leave to employees who need to recover from a serious illness or who need to care for a family member's serious illness. But if an employee's FMLA time has run out and they have yet to return to work, what happens?
Here's what you should know:
A. Communication from both the employer and the employee is critical to the success of leave that is protected under the Family Medical Leave Act (FMLA). This is especially true if the employee’s expected return date is before their full FMLA allowance would be used. In that situation, it is possible that the continued absence would be protected FMLA leave, so you should make every practical effort to contact the employee by phone, email, and certified mail. All efforts to contact the employee should be documented.
You should also consider whether the employee may be protected under the Americans with Disabilities Act (ADA), even if all FMLA-protected leave has been taken.
FMLA issues can often prompt an ADA analysis. If you think there is any possibility that the employee would be considered disabled under the ADA based on your objective knowledge (and especially the reasons given for the initial FMLA leave), you should also be reaching out in an effort to start the ADA interactive process to determine if they are disabled and if there are any reasonable accommodations that can be made.
You may be able to sever the employment relationship if the employee is completely unresponsive within a reasonable period of
sick leave, or if a different termination procedure is used.
Following this procedure shows "good faith" on your end. Acting in good faith and documenting your good faith efforts may provide you with protection should you ever be challenged with regard to your decision to terminate this employee.
Even if the FMLA-protected leave is exhausted and no ADA protections are available to the returning employee, you may choose not to treat the failure to return to work after FMLA leave in the same way as other job abandonment is treated. By giving the employee who has failed to return from leave a week or two to explain the absence, you can ensure that all parties are in agreement about the expected return date and that additional protected leave is not required. However, if you do decide to apply your regular job abandonment policy in this situation, you should make sure that you are giving the non-returning employee the same number of missed work days and attempts at communication before termination that you would give to any other employee, or have given to other employees in the past.
Frequently Asked Questions
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If you're struggling with employee FMLA leave and compliance requirements surrounding it, contact us to see how we can help your business navigate your concerns. If you need help answering a specific compliance-related question, schedule a compliance check-up with one of our experts today.
*Original content based on HR Support Center resource. This content is intended for educational purposes only and should not be considered legal advice.*
