Can You Discharge an Employee on FMLA Leave When He Intends Not to Return?

July 15, 2020

If an employee on Family and Medical Leave Act (FMLA) leave submits a letter signaling his or her intent to resign at the end of leave, do you have to wait until the leave is over, or can you terminate the employee now?

Generally, you may terminate an employee at the time he or she tenders his unqualified intent to resign. The FMLA entitles eligible employees of covered employers to take unpaid leave for certain family and medical reasons. Employers are also required to maintain group health insurance coverage for employees on federal FMLA leave under the same terms and conditions as if they had never taken leave.

Upon return from federal FMLA leave, an employee is generally entitled to be restored to his original job or to an equivalent position with equivalent pay, benefits, and other terms and conditions of employment. If he or she provides you with unequivocal notice of his 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.

Under 29 C.F.R. § 825.311(b), once an employee expresses his or her unequivocal intent not to return to work, your job reinstatement and benefits continuation obligations immediately cease. That means you may—but are not required to—immediately move to terminate the employee.

If you choose to proceed with termination under these circumstances, you should be aware of the need to comply with your other obligations under state and federal law.

  • You should notify the employee of his or her rights under the FMLA before taking leave and should clearly set forth requirements for him or her to provide periodic reports of his or her status and intent to return to work during his leave.
  • If, during FMLA leave, the employee informs you he or she doesn’t intend to return to work, you should require the employee to submit either a letter of resignation or other formal documentation before initiating the termination of employment and benefits.
  • Before initiating termination proceedings, ensure that the termination is lawful under state-specific FMLA and fair employment laws governing your employment practices. You should also be mindful to avoid inadvertent discriminatory practices by terminating an employee and should consistently apply your policies across all categories and classes of employees.
  • You must notify the employee of his or her rights to continuing healthcare coverage under COBRA within 14 days of notifying him or her of his termination.

Although you generally have the right to terminate an employee who provides unequivocal notice of his or her intent not to return to work, that right is not absolute, and it may not represent employment best practices. For instance, you may not be allowed to immediately terminate an employee who has expressed his or her intent not to return to work due to an ongoing medical condition or other qualifying event under the FMLA. Nor may you terminate an employee for discriminatory reasons.

As a result, before terminating an employee who notifies you of his or her intent not to return to work, you should evaluate your business requirements, company culture, and employment priorities.

This article, slightly modified to note recent updates, was featured in the Great Lakes Employment Law Letter and published by BLR®—Business & Legal Resources. Reproduced here with the permission of BLR®—Business & Legal Resources.