FMLA and 45 day resignation
WO
130 Posts
Greetings Forumites, Have a particularly dicey one for you.
An employee was injured off the job at 10 months (September) of employment. She had her 1250 hours worked in. Her dept director elected to allow her leave w/o pay. She had no employer paid health insurance. This estimated 6 week leave is still going on. On her 12 month anniversary I started her FMLA. She was also returned to work at 10 hrs/week and then up to 20 hrs/week in December. She has 12 work weeks FML effective in November.
Although authorized to work 20 hours/week she pulled a no show for 5 days over the holidays. (She lost her paid holidays.) Her director (after my urging) wrote up a written reprimand. Yes, that is lenient but her director had been allowing her to work at home and lots of confusion as to whether she was working or not. Although after much nagging from me, he finally told her no work at home prior to this incident.
January, today we receive her resignation. What a relief! However she is giving 45 days notice. My initial thought was to tell her we will advertise and replace her immediately, therefore we will only need a two week notice and let her go.
This employee never should have made it past the probation period but she did. Her director is finally recognizing that and I have withheld any "I told you sos".
So to my question: With FMLA protection can I let her go earlier than she wants to?
An employee was injured off the job at 10 months (September) of employment. She had her 1250 hours worked in. Her dept director elected to allow her leave w/o pay. She had no employer paid health insurance. This estimated 6 week leave is still going on. On her 12 month anniversary I started her FMLA. She was also returned to work at 10 hrs/week and then up to 20 hrs/week in December. She has 12 work weeks FML effective in November.
Although authorized to work 20 hours/week she pulled a no show for 5 days over the holidays. (She lost her paid holidays.) Her director (after my urging) wrote up a written reprimand. Yes, that is lenient but her director had been allowing her to work at home and lots of confusion as to whether she was working or not. Although after much nagging from me, he finally told her no work at home prior to this incident.
January, today we receive her resignation. What a relief! However she is giving 45 days notice. My initial thought was to tell her we will advertise and replace her immediately, therefore we will only need a two week notice and let her go.
This employee never should have made it past the probation period but she did. Her director is finally recognizing that and I have withheld any "I told you sos".
So to my question: With FMLA protection can I let her go earlier than she wants to?
Comments
James Sokolowski
HRhero.com
"Employees who give unequivocal notice that they do not intend to return to work lose their entitlement to FMLA leave."
Since she's given notice, it would seem to me that the FMLA issue is now a non-issue & she's not entitled. As to the notice period - nothing says you can't say 2 weeks is all you can give - as it does create an undue hardship on your org. to keep the position empty for that long. Just my thoughts.
But also, would the 45 day period still keep her within 12 weeks of intermittent FMLA or put her at the very expiry of FMLA; or would FMLA have previously expired by then and the emplyee could have returned to work?
If the latter, I'd discuss with legal counsel the impact of discharging her now since I think a reasonable reading of 29CFR825.309 would be "not returning to work at the end of FMLA" not sometime down the road after FMLA is finished and the employee presumably returned to work.
MWild is onto something here. I think a simple analysis of the calendar should tell you whether or not she is eligible for FMLA in the first place.
"Intent to Return to Work
"...Anytime the employee gives unequivocal notice of intent not to return to work, the employer’s obligations under FMLA stop. This means the employer is no longer obligated to maintain group health benefits for the employee, and the employer is not required to restore the employee to an equivalent job.
For example, an employee who is on FMLA leave for the birth of a child and care of that child might advise the employer she has decided to stay home with the child and not return to work. Once the employee advises the employer of this decision, the employer's responsibilities under FMLA stop. For more detailed information, see Regulations 29 CFR Part 825.309."
It would seem to me that given the information provided, this ee is covered right now under FMLA & as of the date of her letter of resignation - she states unequivocally, she quits & states her last day of work. My stand is that on the date of her resignation letter, her coverage under FMLA ends - she notified you. I would then follow Don's excellent advice & allow only for a 2-week notice period. (p.s. - if you do let her continue for the 45-days & then accept the letter & the 45-days coincide with the end of her FMLA period - if she doesn't complete a 30-day return to work program - you may be able to recoup health benefit costs - depending on your policies.) Hatchetman is right - consult with an attorney if you feel at all uncomfortable with this plan - you're comfort & knowledge of FMLA is very important.
Her FMLA started 11/12/03, so she is burning it but has also been on medically necessary intermittent leave which will allow more time. No precedent with the lengthy notice.
The "intent to return to work" info was something I had missed.
Much appreciation!