FMLA leave problems!!!

[anabel]

I am in a quandry. I need to know if I have the legal right to dimiss a particular employee. He has been on FMLA leave for almost the full 12 weeks due to an injury he sustained at home. Today, he let me know that his doctors say that he must remain off from work until sometime in January. His FMLA leave is exhausted on November 27th. This employee has been a problem- a real complainer- in the past and he has been warned many times that his production has been substandard. Basically, we have had other workers running his machine and they are doing much better than he did-we want to keep them in his position. We have no other positions open at this time and do not wish to hold any positions that may become available in the near future open untill mid January. Can we let this man go? My interperatation is that we CAN as he is no longer protected by FMLA after his 12 weeks are up. Please help! I need answers quick!!

 

[Jez]

My background is in HR. What I suggest is that first you ask him to provide a doctor note specifically stating that he needs to be off work, with specific dates. Without that, you can fire him when his FMLA leave is over. Then you need to look at what type of disability he has due to this accident and see if it falls under the ADA, because if it does, that changes things up a bit. Also, If he has a valid doctor note and your company offers, and he qualifies for, short term disability, then you have to put him under that. Does your company have an attorney to consult with? You have to be real careful with these medical situations.

[Edited by Jez on 11-15-2000 at 05:11 PM]

 

[anabel]

Jez-
We do have a lawyer we consult about such matters-problem is, she is rarely available and takes a great deal of time in getting back to me with any information, although she is good and well respected in this area of law. The employee in question was notified by me that we were counting his leave toward the FMLA. He elected to waive our insurance package and thus, is not eligible for any disability claim. He has a broken leg, actually and I have written documentation from his doctor that he should remain off of work untill mid January. The doctor will not provide a specific date. The employee said to me today, as he is without a present source of income having not elected disability coverage, that he is going to quote "force his doctor to release him by next Monday". This opens up a whole NEW can of worms- if he IS released back and we take him back, are we setting ourselves up for a future worker's comp claim or settlement if he comes back before he is ready? Remember that his is a problem employee and we really don't want him to come back anyway. God, what a mess..sometimes I hate my job!

 

[Jez]

Wow.. that is a mess. If his doctor releases him back to work and can provide proof of that, you do have to take him back. You aren't setting yourself up legally, but you are kind of setting yourself up for a Workers Comp issue if you think he might be hurt further if he comes back to work. I would definitely run that past an attorney.

One of the biggest things I learned in HR is that you can never try and "combine" medical issues/leave issues with performance problems and try to use the medical issues to terminate a poor performer. If he can get released to come back, than I suggest you start progressively disciplining him out in every instance of poor performance that he shows.

Otherwise, without being under FMLA and not having other leave options available to him, I do believe you can terminate him. I don't know all the policies of your company though. Do you have a "personal" leave of absence employees can use that you have allowed others to extend FMLA leaves with? My best advice to you, if you want to proceed with termination if he doesn't return when his FMLA runs out, is to make sure that you have treated him the same as you have every other employee that might have run out of FMLA time. If you have ever extended another person's FMLA leave that didn't have disability benefits, or went outside your polices for other people, then you are setting yourself up for a lawsuit.

 

[anabel]

Thanks for the advice! I agree with everything that you are saying...My problem is that our supervisors are real quick to discipline someone verbally and not take the time to document anything systematically. We are a fairly young company with about 65 employees, so basically a lot of this is new to them. I am trying to turn things around here, but I am learning and we have never had a full fledged human resource department before. I do keep in contact with legal representation on most all matters though and unfortunately, I am becoming pretty well versed in the do's and dont's of the trade-just because we have had so many messy situations come up-believe it or not, we have had a few worse than this not so long ago! As for a precedent, we have terminated every employee that has not returned after their 12 weeks-however, evry employee that has been in this situation before had not wished to come back and not pursued coming back, so there was never any problem. I am afraid we may just have to play this one out and see where it goes. I appreciate your help!