FMLA - Med cert has ee out for 10 months, when to term employ?

[Guest LFrankel]

We have an employee who previously inquired about FMLA (given the policy, documents and instructions) when she found out she was pregnant. Three months later, she went AWOL for a couple of days around the time her supervisors brought to our attention disciplinary action they were about to undertake. We reached out to her to complete the FMLA documents, and subsequently, her health care provider states that she will not be able to return to work until well after her FMLA coverage (and post-partum recovery) are over.

My question is, "when can we term her employment?" If we know in advance that she will exceed her covered leave, do we have to offer it to her anyway? Our main concern is her benefits package and when her COBRA eligibility would begin.

Does anyone have any thoughts on this? Thanks.

[Sheila K]

Heavens...they do want it all don't they! If she is qualified for FMLA, then that leave must still be offered. Her COBRA coverage would begin on her termination date.

If the certification has her out for an extended period of time due to difficulty with the pregnancy, then there's not much you can do except wait for the 12 weeks to be over, then I would separate the employment. If the certification has an extended recovery period (over 6 wks for normal delivery, 8 wks for Caesarean), I would ask for a second opinion regarding the need for that extended leave. Would a normal recovery period still extend beyond the FMLA period?

Was the disciplinary action as a result of absenteeism? If so, you're probably stuck with her until the FMLA leave period is over.

[Guest LFrankel]

Shelia,

Thanks. That was my inital thought; that we have to let her use her leave before terminating her. I just wanted to make sure, so that if we didn't go that route, we were not violating the Preg Discrim Act. However, since she'll be on unpaid leave, she will wind up being responsible for her entire medical insurance premium anyway. So I guess it's splitting hairs on the benefits issue.

She was being disciplined for performance issues. The whole leave is kind of strange, as she originally came to see me in April, she went out late July, and her doctor is stating an RTW of May 2005!