Under FMLA, how long is an employee allowed to leave before I can terminate his employment?
Employment / Labor Attorney
I am a California attorney and cannot give legal advice in your state. My comments are information only, based on federal law and general legal principles. YOUR STATE MAY HAVE ITS OWN LAWS THAT OFFER SIMILAR OR GREATER PROTECTION. If I mention your state’s laws, it only means I did a quick Internet search and found something that looked relevant. You MUST check with an attorney licensed in your state to learn your rights.
The FMLA allows employees with serious medical conditions to take leaves of absence for a maximum of 12 weeks per year. The time can be taken all at once or in increments of one day or even one hour. When the employee returns from leave, the employer must put the employee back into the same position held before the leave, or a substantially equivalent position that has equal or similar pay, equal or similar duties, equal or similar working conditions, etc.
Please look at my Avvo guide on the FMLA for a better understanding of these rights: http://www.avvo.com/legal-guides/ugc/family-and-medical-leave-fmla-summary-of-key-provisions.
Be careful. Many serious medical conditions under the FMLA also meet the definition of "disability" under the ADA. Additional leave time may be a reasonable accommodation under the ADA. Therefore, the inquiry doesn't stop just because an employee has had 12 weeks of leave. You should consult with an attorney before acting.
*** All legal actions have time limits, called statutes of limitation. If you miss the deadline for filing your claim, you will lose the opportunity to pursue your case. Please consult with an experienced employment attorney as soon as possible to better preserve your rights. *** Marilynn Mika Spencer provides information on Avvo as a service to the public, primarily when general information may be of assistance. Avvo is not an appropriate forum for an in-depth response or a detailed analysis. These comments are for information only and should not be considered legal advice. Legal advice must pertain to specific, detailed facts. No attorney-client relationship is created based on this information exchange. *** Marilynn Mika Spencer is licensed to practice law before all state and federal courts in California, and can appear before administrative agencies throughout the country. She is eligible to represent clients in other states on a pro hac vice basis. ***
FMLA allows up to 12 weeks of leave for an employee that invokes their rights under this statute. However, this law is complex and must be evaluated in conjunction with other laws, such as the ADAAA. Many times, employers who do not fully understand how FMLA works allow employees who are not entitled to FMLA leave to take the leave. For example, an employee that has not worked for a sufficient number of hours for your company may not be entitled to FMLA protection. Just because your company comes under the FMLA umbrella, does not mean that every employee is entitled to the protection. To the same extent, just because the FMLA leave runs out does not mean termination is appropriate or allowable. For example, if an employer terminates after the 12 weeks are up without first discussing with the employee a return to work with reasonable accommodations pursuant to the ADAAA, the employer may be in violation of this law.
One constant in all of this, is that if an employee feels they have been wronged, even if they have not been,…they will hire an attorney. While they are sitting at home, they are bombarded by commercials from various law firms and have little risk in seeking representation. It is better to speak with a lawyer prior to terminating the employee to go over your specific situation and discuss all the laws and potential ramifications of your decision. This will also help you put a process in place for the future should the issue arise again.
I agree with the responses of other counsel. You must permit up to 12 weeks if it is properly certified. If the leave is going to be intermittent leave, then it is up to the equivalent of 12 weeks. Prior to termination, I would recommend discussing the situation with a local employment attorney. The consultation could save you untold aggravation and expense.