Theguarantees a qualified employee up to 12 weeks’ unpaid leave and the right to return to the same job (or a substantially similar one) after the leave ends. But employees don’t always return, and sometimes they tell you while they’re on leave that they won’t be back.
Fortunately, U.S. Labor Department regulations specify that your FMLA obligations end as soon as “an employee gives unequivocal notice of intent not to return to work.”
That means you can stop any benefits and fill the employee’s position immediately, with no further obligation. Also, filling out retirement paperwork or submitting a resignation notice does count as “unequivocal notice.”
Recent case: Wilton Williams worked for Lyondell-Citgo for 28 years in a job that required him to take qualifying exams from time to time. When the company suspended him for a week for failing to close a drain valve, it told him he had to pass a competency exam as a condition of returning.
Williams looked at the test and told the company he didn’t feel well enough to take it that day. He went home and never returned.
He did, however, ask for. While the company reviewed his request, it called Williams in for a meeting. Apparently thinking he was going to be fired, Williams filled out his retirement paperwork and submitted it before the meeting began.
But he wasn’t fired. Instead, he learned that his request for FMLA leave was being denied. He sued, alleging the company interfered with his, including the right to get his job back.
The court tossed out his case, reasoning that his retirement paperwork was proof he didn’t intend to return. And that ended the company’s FMLA obligations. (Williams v. Lyondell-Citgo Refining Co., No. 05-20653, 5th Cir., 2007)
- How to Fire an Employee the Legal Way: 6 Termination Guidelines
- You don't have to accept after-the-fact proof of FMLA leave
- The Genetic Information Nondiscrimination Act finally becomes law
- What are the COBRA rules applying to small businesses in Ohio?
- USERRA reinstatement requirements following military leave