What to Do If an Employee Does Not Return After FMLA

The Family Medical Leave Act (FMLA) was established in 1993 to protect employees who experience the birth or adoption of a child or a serous health condition for either themselves or a close family member. The leave, if approved, offers up to 12 weeks of unpaid leave for employees of companies with at least 50 people within a 75-mile radius. The leave may be taken all at once or intermittently, and the guidelines for managing FMLA leave are quite complex.

Employers most notify employees of their FMLA rights within five days of an absence. After obtaining physician documentation for an FMLA, request, the employer then has five days to either reject or accept the request. If an employee does not return the FMLA form, she may be terminated for excessive absence. If an employee has not returned from a designated FMLA leave in the specified time, the employer may take action to terminate the employee, depending on the circumstances. Termination of an employee who has not returned may only take place if the employee has exhausted her 12 weeks of leave within the calendar year and continues to accrue absences. If the employee has not worked 1,250 hours in the previous calendar year, she will not be eligible for FMLA in the following calendar year.

Employees requesting FMLA leave have 15 days in which to provide documentation of their illness or adoption request. By not providing adequate documentation, employees may forfeit their eligibility for FMLA and may be terminated based on excessive absence. Pregnancy presents an exception to the aforementioned guideline. Employers who are aware of an employee's pregnancy can file FMLA on the employee's behalf dating back to the first day of absence. Employees must provide adequate documentation for illnesses within the designated time period.

Key employees, or employees who have salaries within the top 10 percent of the company salary range, may legally be denied FMLA leave if it is shown by the organization that this employee is "key" to the function of the organization. As an employer, denying these requests may be counterproductive. The law , however, allows this particular exception. Pregnancy of a "key" employee is not covered by the exception, and key employees who become pregnant are guaranteed protection by FMLA.

FMLA is a complex law, and employers should take special heed in tracking FMLA requests and leaves. If FMLA requests are not properly documented and managed, the employer is inevitably responsible. The courts have generally ruled in favor of employees in FMLA cases. FMLA training is available through both private and public organizations and is highly recommended for FMLA-governed organizations.