Human Resource Blog

Alaska FMLA and Termination

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If an employee who works for a union has exhausted his or her leave under FMLA, can the employee be terminated?

Alaska employees who have exhausted their leave under FMLA and are unable to work can usually be terminated by their employer.  This is also true in other states.  It also applies to all employers, whether they are members of a union or not.

If the above question actually means, “If an employee works under a union contract. . .”, as opposed to meaning that the union is the actual employer, then the union contract should be checked. 

The federal Family and Medical Leave Act of 1993 entitles employees up to 12 weeks of job protected, unpaid leave if they have a serious medical condition.  There are many types of health problems, including pregnancy disability, that are covered by the act.

It is also possible for employees to utilize FMLA leave to care for a child, parent, or spouse who has a serious medical condition.  Time can also be used to bond with a newly adopted child, new foster child, or newborn.

After an employee’s 12 weeks of unpaid leave have been exhausted, it is possible that his or her job could be lost if the employee does not return to work.  No federal law exists that prohibits this.  Very few states allow leave longer than 12 weeks.

To some, it may seem unfair that employees might lose their jobs because of illness.  It is important to remember, however, that prior to FMLA, employees were usually fired if they missed work for even as little as two or three weeks.  Employers need someone to perform specific jobs.  It is not feasible for them to hold jobs open for a year or more in hopes that an employee will return to work.

Termination might not apply in some situations.  For an employee who currently has a disability, and was able to perform his or her job with reasonable accommodations from the employer, the ADA would require the employer to make the accommodations.

If an employer has previously allowed other employees to extend their unpaid leave, then they would have to offer the same benefit to each employee. JH