How to Terminate an Employee on FMLA
Terminating an employee who has taken Family and Medical Leave Act leave requires detailed documentation. When it is determined that an employee on FMLA leave should be terminated, there are several potential causes. The employee may not have fulfilled the documentation requirements of his leave or it may be determined that he is not able to resume his job duties upon return. Additionally, patterns of absence may indicate FMLA abuse, especially if they are not backed up with sufficient documentation.
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Instructions
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Absences, Documentation and Fit for Duty Reports
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Track absences carefully. Employees trying to use FMLA for additional time off will often show patterns of absence. They may be consistently late to work after an NFL game has aired the night before or call in sick on Fridays and Mondays. Most employees do not realize an employer has the right to question FMLA absences and require documentation. By documenting absences, an employer can protect itself if the need arises to dismiss an employee abusing FMLA.
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File FMLA paperwork accurately and in a timely manner. A standard physician's statement form is available at the Department of Labor's website under FMLA (see Resources). Impose deadlines on FMLA paperwork, including physicians' statements, as part of your human resources policy. According to the FMLA, an appropriate deadline for return of physician's statements concerning FMLA conditions is 15 days after notification. Employees who do not return paperwork in this amount of time may be denied FMLA coverage if they had sufficient notification of an FMLA qualifying condition and did not request an extension of the paperwork deadline. Providing extensions for paperwork is not required by employers.
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Require employees to provide a "fitness for duty" report from their physicians upon return from FMLA leave. Returning to work after FMLA leave means that an employee is able to resume normal job duties. Employers can require verification of fitness for duty every 30 days, but cannot require a second or third opinion on the fitness for duty certification. The Americans with Disabilities Act requires employers to provide accommodation for employees with disabilities if it will not cause "undue hardship."
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Tips & Warnings
The Family Medical Leave Act is a complex law in which the courts often rule in favor of the employee versus the employer. It is advisable to consult an attorney who specializes in labor law regarding difficult FMLA cases and cases in which termination of an employee is being considered.
References
Resources
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