Firing an employee who intends not to return from FMLA leave

Q         If an employee on Family and Medical Leave Act (FMLA) leave submits a letter signaling her intent to resign at the end of her leave, do we have to wait until her leave is over, or can we terminate her employment now?

A   Under the FMLA, you must maintain an employee's coverage under any group health plan as you would if she weren’t on FMLA leave. You are also required to place an employee returning from FMLA leave back in her same position or an equivalent position with equivalent benefits, pay, and other terms and conditions of employment.

But, if an employee gives unequivocal notice during the leave of her intent not to return to work, your obligations under the FMLA to maintain health benefits and to restore her cease, and you may terminate her employment. Such notice from an employee, however, should be distinguished from a notice in which she merely indicates she may be unable to return to work but expresses a continuing desire to do so.

In this latter circumstance, the obligations to maintain health benefits during the leave and to restore her back to her same position or an equivalent position upon conclusion of the leave continue, and you may not terminate her employment.

Martin J. Regimbal, a shareholder of The Kullman Firm, can be reached at 662-244-8825 or mjr@kullmanlaw.com.