Q - A: When an employee on FMLA leave intends not to return, you can discharge him

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

Generally, you may terminate an employee at the time he tenders his unqualified intent to resign. The FMLA entitles eligible employees of covered employers to take unpaid leave for certain family and medical reasons. Employers are also required to maintain group health insurance coverage for employees on federal FMLA leave under the same terms and conditions as if they had never taken leave.

Upon return from federal FMLA leave, an employee is generally entitled to be restored to his original job or to an equivalent position with equivalent pay, benefits, and other terms and conditions of employment. If he provides you with unequivocal notice of his intent not to return to work, however, your obligations under the FMLA are governed by 29 C.F.R. § 825.311(b), which states:

If an employee gives unequivocal notice of intent not to return to work, the employer's obligations under FMLA to maintain health benefits (subject to COBRA requirements) and to restore the employee cease. However, these obligations continue if an employee indicates he or she may be unable to return to work but expresses a continuing desire to do so.