FMLA and 45 day resignation

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?

Comments

  • 9 Comments sorted by Votes Date Added
  • I don't think FMLA protects her job, especially if she is resigning (rather than being termed due to performance or RIF). There was a good thread a while back on how much time until a resignation was too much and what to do about it. Good luck!
  • Totally setting aside the issue of FMLA, I would accept her resignation and tell her in writing that it is effective two weeks from the day of receipt. FMLA neither imputes special rights nor suggests uncommon fears regarding resignations or their acceptance.
  • Don is on target. What would be the point of a 45 day notice while on FML? The only benefit I can see has to do with the requirement to maintain health insurance, but the whole reason for FML is to give the EE a job to come back to. She obviously does not need that protection given her resignation. Accept it as Don suggested, thank your lucky starts and move on.
  • Good advice. My only caveat: If you've allowed other ees to give long notice in the past, you'd want proof of your legit reasons why you're treating her differently.

    James Sokolowski
    HRhero.com
  • It sounds to me like she's given you:

    "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.
  • [font size="1" color="#FF0000"]LAST EDITED ON 01-05-04 AT 08:29PM (CST)[/font][br][br]Wouldn't the refusal of the company to wait 45 days to implement the resignation, but instead to terminate at the end of two weeks be a discharge and not a voluntary resignation? This would be for UI consideration.

    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.

  • In most states, the UI decision would turn on 'who initiated the separation', not when was it final. In this state, it is considered reasonable, from a UI standpoint, for the employer to accept such a resignation and have it effective in two weeks. Otherwise, the law reasons, there would be nothing to keep employees from stating their intention to resign in 6 months, encouraging their sooner termination, and making them automatically eligible to sit home and draw a check.

    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.
  • Okay - let me add some information from the DOL & their elaws advisor:

    "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.
  • Excellent information thanks so much.

    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!
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