You can terminate employees who are unable to return to their jobs after theirhas expired. Just make sure you’re consistent.
If you apply the same termination rule to all employees—regardless of race, age, sex or membership in any other protected category—you won’t have to worry about lawsuits.
Recent case: Linda Pittman worked as a truck driver for the Collin County Public Works Department. She took severalleaves over the years, returning to work after using her 12-week allotment even though she wasn’t fully recovered. Each time, the county had light-duty positions she could fill.
That changed when an ambitious public works repaving project began. The department canceled all light-duty positions and concentrated all its efforts on repaving.
Then Pittman tore a ligament and again took 12 weeks of FMLA leave. Afterward, she couldn’t get clearance to climb into a truck. Since no light-duty positions were available under the new project schedule, she was terminated.
Pittman sued, alleging sex discrimination.
But she wasn’t the only employee the Public Works Department had fired for not being ready to return to a job. A male truck driver suffered the same fate.
The court dismissed Pittman’s case. It reasoned that the county had a good business reason for removing the light-duty work and that it treated everyone equally. (Pittman v. Collin County, No. 4:08-CV-257, ED TX, 2010)
Final note: Of course, if the employee who can’t return from FMLA leave is disabled under the ADA, consider whether a reasonable accommodation would allow her to perform the essential functions of her job despite the disability. That may include providing additional time off.