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Can we terminate now an employee who we know can’t return from FMLA leave?

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in Discrimination and Harassment,Employee Benefits Program,Employment Law,FMLA Guidelines,Human Resources

Q. We have an employee out on FMLA leave and have just learned that she will not be able to return to work when her FMLA entitlement expires. Should we go ahead and send her a termination notice now?

A.
Not before you consider whether the employee has any additional rights to protected leave.

For example, under state and federal disability discrimination laws, you may need to consider whether an extension of her FMLA leave would be a reasonable accommodation. This would apply to you if you have 15 or more employees, and it would apply to the employee if she were a qualified individual with a disability.

It is especially important not to overlook the possibility of a leave extension given that new amendments to the ADA broadly expand the categories of individuals protected by the ADA.

Assuming your company has a duty of reasonable accommodation, you and the employee must engage in “an interactive process of reasonable accommodation.” This should be a dialogue with the goal of identifying the employee’s need and any reasonable possibilities for accommodating that need, including on what terms additional leave might be offered.

Unlike with FMLA leave, however, the ADA prescribes no set amount of leave, and no specific job protection or other leave terms necessarily apply. These are issues for the employer and employee to try to resolve through the accommodation process.

If the FMLA leave is for a work-related injury, it will also be necessary to consider the state’s workers’ compensation law and your company’s workers’ compensation insurance policy before deciding whether to give a termination notice following FMLA leave.

The workers’ compensation law prohibits an employer from discharging (or threatening to discharge) an employee because he or she sought or received workers’ compensation benefits. The statute also prohibits an employer from interfering with the employee’s receipt of workers’ compensation benefits.

Consult with your company’s insurance carrier about policy requirements. Most require an employer to cooperate with the carrier to keep coverage costs down.

Another item to check before you decide whether to offer a post-FMLA leave extension is your company’s practices and policies regarding leave in non-FMLA situations. You will need to be consistent with such policies and practices in order to avoid claims that your company discriminated against the employee because of a disability or has violated the workers’ compensation law.

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