Human Resource Blog

FMLA

Hello,

We have an employee who has been off work since July 2008 due to a serious health condition. He has exhaulted his FMLA time alloted, however, we have continued to maintain his position even though he has not returned to work. Recently our company went through a RIF and we laid off 40+ employees. This employee’s name was included in the lay-off, however, I am curious if that is the right thing to do? Obviously we want to do what is right accordingly to Texas labor laws. Can you please provide any assistance that would help us make the right decision and how we should proceed.

Thank you!
Robin

Your actions towards this employee have been very generous, but they may also have been foolish. Texas has no family leave law, so the relevant statute is the FMLA, the federal Family and Federal Leave Act. The FMLA permits employees to take up to 12 weeks of unpaid, job-protected leave for a variety of reasons, including a serious health condition.

Once this employee exhausted that FMLA leave, he could and probably should have been terminated. Instead, you elected to keep his job open for him. Apparently, you continued to do so for an additional 3 to 4 months. That sets a precedent and you must do the same for any other employee who has a serious health condition in the future. If you do not, you may well be guilty of illegal discrimination under federal law. In particular, the federal PDA or Pregnancy Discrimination Act requires employers to offer the same benefits to pregnant women, that they offer to workers on other types of medical leave. So if you have a pregnant employee, or another employee with a serious health condition, now or in the future, they must be given an additional 3 to 4 months of unpaid, job-protected leave — just as this employee was.

To return to your original question, yes, you certainly can lay this employee off. An employer can take any action against a worker who is on FMLA, that would have been taken anyway, if the employee was not on FMLA. (The same is true of any informal unpaid medical leave that the employer grants.) The employee cannot be fired solely because he took FMLA. But if he is among a group of employees who are scheduled for layoff, FMLA (or unpaid medical leave) does not exempt him from such action. Keep records to document that this is why the employee is being laid off.

For your own protection, we suggest that you draft a new company policy regarding unpaid leave with an effective date at least 2 weeks in the future and have every employee sign it. This is the only way to change your leave policy. Or, you can continue to offer 3 months of unpaid FMLA plus an additional 3 to 4 months (or more) of unpaid medical leave.