If employee can’t return from FMLA leave, it’s not interference to terminate — Business Management Daily: Free Reports on Human Resources, Employment Law, Office Management, Office Communication, Office Technology and Small Business Tax Business Management Daily
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If employee can’t return from FMLA leave, it’s not interference to terminate

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in Firing,FMLA Guidelines

Employees who take FMLA leave to deal with their own serious health condition are entitled to reinstatement to their jobs or substantially identical ones when they return. But what if the employee isn’t ready to come back after 12 weeks?

In that case, employers don’t have to reinstate the employee—at least not under the FMLA.

Recent case: Jason Hearst, who worked for Progressive Foam Tech­nologies, was injured in an accident. Progressive told him he could start taking FMLA leave even though he technically hadn’t yet worked for the company for a full year.

After using up his FMLA leave, Hearst still couldn’t return to work. The company gave him more time, but ultimately terminated him.

He sued, alleging interference with his right to FMLA leave.

He made the novel argument that he hadn’t actually used his 12 weeks of leave when he was fired. His claim? That Progressive counted the first weeks as FMLA leave when he wasn’t eligible and should have started the count on the day he reached his one-year anniversary.

The court said it didn’t have to ­decide that question. Instead, it was clear that Hearst’s FMLA rights hadn’t been violated since he couldn’t have returned to work even if the count started later. (Hearst v. Pro­gres­sive Foam Technologies, No. 10-1253, 8th Cir., 2011)

Final note: By allowing Hearst to take additional time off, Progressive cut off a potential ADA claim for more time as a reasonable accommodation.

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