Human Resource Blog

Termination of an employee who has exhausted thier FMLA time

	Attendance Management
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We have an employee who took medical leave from 7/17/2007 to 9/5/2007 (which adds up to 7 weeks) and is now on another medical leave starting on 5/5/2008 with an expected return date of 7/3/2008. Can we terminate this employee due to the fact that all FMLA time has been exhausted in a 12 month time period? If so, does the termination letter need to stated a certian way as to not cause any legal action to our company?

First, be sure that the employee really has exhausted his FMLA leave. There are 4 possible ways to calculate available leave, and under some of them, this employee might still be entitled to more time. If your company has used one method in the past, it should continue to use the same method of calculating eligibility for FMLA (unless there is written notice to employees before taking leave that the method of tabulation will change.)

The most common method of calculating FMLA leave is to start from the first day the employee takes FMLA and count forward. If you are using this method, the employee’s eligibility “year” began on 7/17/07 and on June 9, 2008 he will have used all of his available FMLA leave.

The best way to inform the employee would be to send him a registered letter prior to June 9, advising him that if he doesn’t return to work by June 10, he will be terminated. (The letter should be tied to arrive before that date.) Also advise him that if he does return to work, he will need to provide a doctor’s release certifying that he is “fit for duty.”

Since you are concerned about a lawsuit, you may want to consult an attorney before taking this action. However, even the best legal advice in the world doesn’t ensure that no one will sue an employer.