Human Resource Blog

Montana FMLA and Termination

	HR Management
Confidential Employee Folder Confidential Employee Medical Folder Job File Worksheet Folder Daily EEO Applicant Flow Log Workplace Information Sheets Request to Inspect Personnel Files

	Termination
Employee Warning Notice Employee Final Warning Notice Employee Resignation Form Exit Interview Questionnaire Separation Checklist

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

For most situations in Montana, as well as other states, an employee who has used all of his or her leave under FMLA and is not able to go back to work can be fired by an employer.  This applies regardless of whether the employer is a union or not.

The federal Family and Medical Leave Act of 1993, or FMLA, says that employees are entitled to up to 12 weeks of job protected, unpaid leave for a serious medical condition.  Such conditions might include cancer, or a heart attack, as well as many other types of health problems.

FMLA leave can also be utilized by employees to care for a parent, child, or spouse with a serious medical condition.  It can also be used to bond with a new foster child, a newly adopted child, or a newborn.

An employee may, however, lose his or her job after they have exhausted their 12 weeks of unpaid leave if the employee does not return to work.  Very few states allow leave that lasts longer than 12 weeks, and no federal law prohibits termination in this situation. 

Though it might seem a bit unfair that employees could lose their jobs because of an illness that lasts longer than 12 weeks, prior to FMLA, employees were typically fired if they were out of work for as little as two or three weeks.  The bottom line is that employers need people to perform the jobs.  It is not feasible for them to hold jobs open for a year or longer in hopes that an employee will return to work.

For employees with disabilities, who are able to perform their jobs with reasonable accommodations by their employer, then termination might not apply.  The Americans with Disabilities Act of 1990 would require the employer to make the necessary accommodations.

In situations where an employer has allowed other employees to extend unpaid leave, they would need to allow the same benefit to all other employees. 

Though no federal law requires it, some companies have a policy of rehiring former employees, should they happen to have an opening.  JH