Q: If an employee on Family Medical Leave contacts us that they will not be returning to work at the end of FMLA leave, can we terminate the employee at the time of notice?
A: Generally, you may terminate an employee at the time they provide or submit their intent to resign. However, a mere mention or discussion of their uncertainty about their ability to return to work, does not meet the requirement under FMLA regulations that they are absolutely not returning to work at the completion of their FMLA leave.
If they provide you with unequivocal notice of their 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.Once an employee expresses their unequivocal intent not to return to work, your obligations for job reinstatement and benefits continuation cease immediately. You have a choice, however, to immediately move to terminate the employee. If you so choose, you may allow the employee to remain on FMLA and terminate at the conclusion of the leave.
That is a choice you must make consistently and fairly following your policy. You should require the employee to submit either a letter of resignation or other formal documentation. Then, typically, such unequivocal intent not to return to work will result in immediate termination of employment and benefits.
Other consideration should be given before terminating when an employee indicates they cannot return due to a continuing medical condition or other qualifying FMLA event. Members can consult with Catapult’s Advice team at 866-440-0302 and/or with the attorney thru the Catapult Legal Services Plan.Â
