Posted by Tamara
In the majority of situations, if an employee is still unable to return to work after exhausting his or her FMLA leave, that employee could be terminated.
This is true in Colorado and elsewhere, and can apply even if the employer is a union.
The law in this case is the FMLA, the federal Family and Medical Leave Act of 1993. FMLA provides up to 12 weeks of unpaid leave to eligible employees for a variety of personal and family health and medical conditions. FMLA also protects the employee’s job while on leave, which means the returning worker must come back to the same job, or to a job with similar working conditions, benefits and salary.
If a collective bargaining agreement is in place which provides for greater benefit, though, that agreement must be followed. For example, if a union contract stipulates that all employees get 16 weeks of unpaid leave, then the employer must grant those 16 weeks of unpaid leave.
Another exception relates to the worker’s physical condition. According to the Americans with Disabilities Act of 1990, if the employee is disabled but can perform the job with reasonable accommodation from the company, then the company must make that accommodation.
Employers are also required to apply all policies evenly and fairly among employees. If a company allows some workers to take more than 12 weeks of FMLA, it must apply that policy to other workers in similar conditions. To do otherwise could constitute discrimination.
If, however, none of these situations exist and the worker can not resume his or her job, the employer is perfectly within its rights to terminate the employee. This may seem harsh, especially in the case of an employee with a serious illness. Consider, though, that prior to 1993, a worker could lose his or her job for missing a couple of weeks from work, no matter what the reason.
The job protection of FMLA lasts only as long as the leave, which is fair. Employers cannot be expected to continually hold a job open in the hope that an employee may eventually recover and return to work.
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