‘I Quit!’ What To Do When Someone on FMLA Leave Resigns
By Michelle Higgins
By this time of the year, many people who’ve made New Year’s resolutions have thrown in the towel. They’ve quit.
Employees also might consider quitting something else this year — their jobs. But what if an employee quits while on leave under the federal Family and Medical Leave Act (FMLA)?
Before throwing in the towel on navigating the FMLA, HR professionals should resolve to know how to handle this type of situation if they have an employee on FMLA leave say, “I quit!”
Checking in with employees
Sometimes employers think they can’t reach out to employees who are on FMLA leave. This isn’t true. They can’t make employees work while on leave, but an occasional call to “touch base” is generally okay. Employers can require employees to touch base, too.
When an employee is on a continuous FMLA leave, the employer should indicate on the rights and responsibilities notice that they expect occasional updates from the employee about whether or not the employee plans to return to work. Taking this step creates the framework for leave expectations and helps an employer establish good communication.
To help avoid surprises such as employees quitting (especially during FMLA leave), openly communicate with employees.
An employer’s policy regarding these updates may not be discriminatory and must take into account all the related facts and circumstances about the employee’s leave.
‘I’m not coming back (probably)’
The FMLA says that if an employee gives “unequivocal notice” (i.e., there’s NO doubt) about not coming back to work after being on FMLA leave, then an employer’s obligations to hold that employee’s job or maintain health benefits (subject to COBRA requirements) come to an end. Immediately.
If, for example, an employee gives birth to a baby and is on FMLA leave for 12 weeks, but halfway through the leave says she’s planning to quit and stay home with the baby, the employer doesn’t have to wait until the 12 weeks are up to end her employment.
Before taking any steps, however, employers should get an employee’s intent in writing. When it comes to FMLA administration, having a paper trail (even an electronic one) is key should a situation turn ugly and a case land in court.
On the flip side, if employees are unsure about coming back after FMLA leave or indicate they’re unable to return to work but express a desire to do so, then employers’ obligations to protect employees’ jobs and maintain their benefits remain in place.
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