Human Resource Blog

Termination while on medical leave without FMLA

My company has fewer than 50 employees, I run a small business and an employee was granted a leave no pay 2 months out, just a courtesy offer from management. The employee still needs one more month off, since we do not have to offer FMLA, we offered her to return to work or her position will be terminated. Any suggestions?

Our only additional suggestion is that you check to make sure there is no state family leave law covering your company. Other than that, it sounds like you are handling this appropriately. Because your small company is not covered by FMLA, the employee was not entitled to any paid or unpaid time off, over and above the absenteeism that you would normally allow.

We will clarify that apparently the position is not being eliminated — the employee is being terminated for lack of attendance. That action is completely justified and most likely lawful. Note that if you have more than 15 employees, and this worker has a permanent disability, she may be entitled to additional unpaid time off under ADA.

It is also important for you to realize that you have now set a precedent of giving employees with a medical problem unpaid leave. By law, you will have to grant the same amount of unpaid leave to other employees, or to any employee who is pregnant.