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Never assume that employees won't return from FMLA leave
http://www.businessmanagementdaily.com/articles/17199/1/Never-assume-that-employees-wont-return-from-FMLA-leave/Page1.html
Mindy Chapman, Esq., Mindy Chapman & Associates
Mindy is a nationally recognized authority in EEO laws and is a contributing editor to the HR Specialist: Employment Law monthly newsletter. She is highly regarded for her workplace compliance training that “clicks and sticks,” because it is practical and memorable. She is also the coauthor of the American Bar Association’s bestseller and authority on civil rights training, “Case Dismissed! Taking Your Harassment Prevention Training to Trial."

The Society for Human Resources Management (SHRM) has recognized Mindy as one of its Top Ten Speakers nationally. She has trained extensively in all industries at all levels of the workforce—from boardroom executives to managers and supervisors and to hourly employees in union and non-union environments. 
By Mindy Chapman, Esq., Mindy Chapman & Associates
Published on 12/19/2008 - 2:30pm
 
Sometimes, when an employee departs for FMLA leave, you’re almost positive that he or she is incapable of returning to work before the allotted 12 weeks expire. You might as well start processing her termination papers a few days early, right? Not so fast, one court says. If you jump the gun and pre-process the termination—even one day before the FMLA leave ends—you may be triggering liability …
Sometimes, when an employee departs for FMLA leave, you’re almost positive that he or she is incapable of returning to work before the allotted 12 weeks expire. You might as well start processing her termination papers a few days early, right? Not so fast, one court says. If you jump the gun and pre-process the termination—even one day before the FMLA leave ends—you may be triggering liability …

Case in Point: Nancy Cutting, an HR rep for a Michigan manufacturing firm, requested FMLA leave due to complications in her pregnancy and gallstone surgery. Cutting was due back to work exactly 12 weeks after her leave began.

However, just before her return date, she contacted her supervisor to ask for an additional 10 days, saying her doctor wouldn’t let her return until then. (That would extend her leave beyond the 12-week FMLA limit). Her supervisor allegedly said, "No problem" to the request. But, in fact, the company began processing her termination because it realized she was overshooting her 12-week maximum FMLA leave.

When Cutting returned to work, she was terminated for failing to return within 12 weeks. She filed an FMLA lawsuit, saying the company interfered with her rights.

The company defended the termination by arguing that Cutting was incapable of coming back to work within the 12-week limit. It said that Cutting’s own request for an additional 10 days off proved that fact. Also, the FMLA says employers can terminate if employees are unable to return to work after the FMLA leave period has expired and no other policies, benefits or laws apply.

What happened next ... and what lessons can be learned?

The court rejected the employer’s defense and sent Cutting’s lawsuit to a jury. It said the employer had “jumped the gun” by beginning to process her termination papers the day before she was originally due back to work. (Cutting v. Ferrous Processing and Trade Co., Dec. 1, 2008)

The court noted that on the date the employer processed Cutting's termination papers, it had no medical records in its possession to prove that Cutting was "incapable of returning to work" on the original day she was due back.

The court also noted that the supervisor’s “no problem” comment may have extended the employee's FMLA leave, which would prevent the employer from clinging to the original return date.

3 Lessons Learned ... Without Going to Court

1. Watch your timing. Terminate only "after" FMLA leave has expired. Even processing the paperwork in advance may create liability.

2. Watch the medical records. Employers should make sure they have, at a minimum, requested proper medical documentation to terminate on a specific date. In this case, the doctor provided an affidavit saying that if he’d known of her original termination date, he could have released her to work sooner. In this case, the employer had not a single medical record in its possession on the date it decided to terminate her.

3. Watch your supervisors—don’t let them extend leaves on their own. Managers should be trained to follow company policies and not extend leaves or benefits without first consulting with their strategic partner in the organization. Inconsistency breeds liability. Supervisors who make decisions in their own silo without regard for centralized compliance can trigger a bullet from the FMLA.