Q. I have an employee who is scheduled for surgery and will be going on. What forms will I need? There is a possibility that he will not return after the 12 weeks. How long will we be required to hold his position for him?
A. Assuming the employee is eligible forleave (you have 50 or more employees, the employee in question has worked for you for more than one year—not necessarily all in one stretch—and has worked more than 1,250 hours in the last year), you will need to notify him that he is eligible for FMLA leave and explain how you will treat his absence. For example, will you require him to take accrued paid sick leave or other leave concurrently with his FMLA leave?
As far as how long you must hold his position, the answer is for as long as he is eligible for FMLA leave. If, at the expiration of his 12 weeks of leave, he is unable to perform the essential functions of his job, he loses the right to reinstatement under the FMLA.
(There may be other legal problems with the termination that you should consider—for example, whether the employee can be accommodated under the ADA or the Michigan Handicappers’ Civil Rights Act, or whether another of your leave policies would grant greater leave of absence rights.)
You can use a handy form available from the U.S. Labor Department to notify the employee of his eligibility. You can download it at www.dol.gov/esa/forms/whd/WH-381.pdf.
It sounds as if your organization does not have a comprehensive www.dol.gov). You may also want to consult an experienced labor attorney.in place. If that is the case, now is the time to make certain you are in compliance with the law. You can get more information at the Labor Department’s web site (
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