What to do when an employee on FMLA leave resigns

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, an employer is required to maintain benefits during leave and to restore the employee on her return to the position she held when the leave began or to an equivalent position. The FMLA regulations state the employer’s obligations cease, subject to COBRA requirements, if the employee gives “unequivocal notice” of an intent not to return to work. Court cases ruling on related FMLA regulations instruct that the maintenance of benefits ceases “if and when” the employee informs the employer of the intent not to return to work.

This means that, once you received the notice, and it leaves no doubt she will be resigning, you are no longer required to continue the benefits throughout the period of leave. You may terminate her employment, subject to any employment contract or collective bargaining agreement, if you would terminate an employee under similar circumstances while taking other leave allowed under your policies.

Also, I will caution that the above doesn’t apply to key employees, defined under the regulations as salaried employees among the highest paid 10 percent of those employed within 75 miles of the employee’s worksite. If she is among this demographic, you will want to consult with legal counsel before taking further action because additional FMLA notice requirements must be followed under certain limited circumstances.