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When employees take time off under Family and Medical Leave Act (FMLA) provisions, the nuances of this law – which enables eligible employees of covered employers to take unpaid, job-protected leave for specified family and medical reasons – have an impact on employers. For example, what happens if employees choose to not return to work or you want to end their employment while they’re out?
Such concerns can be distracting – especially when you’re holding an employee’s place and continuing to provide them with group health benefits while they’re gone. In this post, we’ll answer frequently asked questions about FMLA leave, which can be tricky for small businesses from a compliance perspective.
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Can an employee be terminated while on medical leave?
Yes, so long as the employee would have been terminated regardless of the leave. The FMLA termination must have nothing to do with the employee taking time off, because the law stipulates the time off must be “job-protected” and expressly prohibits retaliation or discrimination against employees exercising their rights under the Act.
In other words, you may legally fire employees on leave if the reasons for dismissal are legitimate, non-discriminatory and unrelated to their FMLA leave. To avoid an FMLA wrongful termination claim, make sure that ending a worker’s employment during or shortly after FMLA leave cannot be perceived as a punitive measure.
If an employee quits while on FMLA leave, can we replace them?
Yes. Although the FMLA requires employers to maintain employees’ job security while they’re on leave, an official resignation voids that responsibility going forward. You no longer have to “hold their spot” when an employee gives notice they are never returning to work. You are then free to permanently fill or eliminate the position the employee left vacant.
It’s important to note that being released from these obligations to an employee on FMLA leave requires that the employee’s resignation be unequivocal under FMLA Regulation 825.311(b). For example, if an employee expresses that they may not be able to return to work, or they don’t know when they’ll be able to return to work, they have not tendered an official resignation. In these cases, your obligations under the FMLA remain in place.
A best practice when accepting an employee’s resignation is to require the worker to submit a formal resignation letter or some other written notice. Before accepting the resignation of an employee on leave or terminating the employee, talk to qualified legal counsel and/or HR compliance experts who can review your unique situation and make sure you aren’t unexpectedly exposing your company to a wrongful FMLA termination claim.
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If an employee quits while on FMLA leave, does an employer have to keep supplying employee benefits?
No. If an employee quits while on leave under the FMLA, an employer is no longer obligated to provide health insurance. The employee may have the right to receive continued benefits under COBRA. If an employee elects COBRA benefits, however, the employee is responsible for 100% of the premium cost.
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Can an employer ask an employee on FMLA leave if they plan to return to their job?
Yes. An employer is permitted to ask that question periodically while the employee is on leave, provided the employee is not being harassed or discouraged from continuing leave.
The FMLA doesn’t specify how often employers may check-in for status updates, but such requests must be reasonable and take all of the facts (including the employee’s condition) into consideration. Reaching out too often or asking for too many details could cross the line into coercion.
The number of check-ins should be based on an employee’s unique situation, with some meriting more frequent contact and others less. The ideal scenario is to agree upon the check-in frequency with the employee before leave begins so both parties understand what to expect.
During check-ins, employers are allowed only to inquire about an employee’s status and plans for returning to work. They are not allowed to pressure employees, suggest they return to work early, threaten an employee’s job security or otherwise interfere with the employee’s FMLA leave.
Do employees have to pay back health insurance benefits if they quit while on FMLA leave?
Maybe. If paid leave has not been substituted for unpaid FMLA leave and if the employee resigns during the leave period or refuses to return to work, an employer may have the right to recover certain payments of the employee’s health insurance premiums. These employer-friendly protections may also apply if an employee returns from FMLA leave and then works fewer than 30 days.
FMLA Regulation 825.213 details restrictions on recovering these costs. When seeking reimbursement for these costs, discuss your specific situation with qualified legal counsel and/or HR compliance experts.
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Can I terminate someone after FMLA is exhausted?
Possibly, but it’s not a given. An employee who has taken 12 weeks of FMLA leave but still isn’t able to return to work could be eligible for additional time off under the Americans with Disabilities Act.
According to the Equal Employment Opportunity Commission, if the employee is a “qualified individual with a disability” under the ADA, granting additional unpaid leave may be considered a reasonable accommodation under that law.
Another possible scenario is that the employee with an ADA disability may be able to return to work but isn’t able to perform essential functions of their job. In this situation, you may be required under the ADA to provide other reasonable accommodations, such as a shorter work schedule or modified job duties.
So, while the FMLA may allow you to terminate a non-returning employee after their 12 weeks of medical leave have run out, make sure you explore what the ADA may require before making that move.
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Where can an employer turn with questions about FMLA compliance?
Compliance with the FMLA and other federal and state regulations is critical, not only to your overall HR strategy but also to your company’s overall success. Axcet HR Solutions is here to help you make sense of your obligations and options.
Axcet is a certified professional employer organization whose HR experts understand employee relations, risk management and compliance for small businesses. Schedule a consultation with one of our experts today to learn more.
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