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New Mexico FMLA and Termination

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In New Mexico, if an employee has exhausted her FMLA leave and does not return to work, can she be terminated? Does it matter if she works for a union?

Employers in New Mexico, as in most other states, can fire an employee who has exhausted leave under FMLA and is unable to return to work.  This applies whether or not an employer is a union.

Employees, under the federal Family and Medical Leave Act of 1993, are allowed to take up to 12 weeks of unpaid, job-protected leave for serious medical conditions.  Serious medical conditions include cancer, a heart attack, and many other types of health problems, including pregnancy disability.

In addition, employees can also use FMLA to care for a parent, spouse, or child with a serious medical condition.  The leave can also be used for parents to bond with a new foster child, a newly adopted child, or a newborn.

Employees might be terminated after their 12 weeks of unpaid leave have been exhausted.  There are no federal laws prohibiting this, and most states do not allow leave that lasts longer than 12 weeks. 

For many, it may seem unfair that workers could lose their jobs because of illness.  Before FMLA, however, workers were frequently fired for missing work for as little as two or three weeks.  Employers must have employees who can perform the jobs that are available.  It is not feasible for them to hold positions open for a year, or even longer, in the hopes that an employee will return to work.

If an employee has a disability and could perform his or her job with reasonable accommodations, termination may not apply.  This is because the Americans with Disabilities Act of 1990 requires employers to make these accommodations.

There are some companies that maintain policies of rehiring former employees.  This is if the company has any openings.  Keep in mind, however, that no federal law exists that requires this. 

If companies have permitted other workers in the past to extend their unpaid leave, then the same courtesy must be provided to every employee. JH