Human Resources News & Insights

Answers to tricky HR questions: Do we have to terminate staffer who’s ineligible for FMLA?

Our team of experts fields real-life, everyday questions from HR managers and gives practical answers that can be applied by any HR pro in the same situation. Today’s issue: Ineligible staffers and the Family and Medical Leave Act. 


An employee who hasn’t been with us for a year broke his leg. Since he isn’t eligible for FMLA yet, should we terminate him now and have him re-apply when he’s healed?

A: That’s probably not the best idea, says attorney Cheryl Stanton, who spoke at  the recent Labor & Employment Law Advanced Practices symposium (LEAP).

Best bet: Consider an unpaid leave of absence instead.

And eliminate any policies you have about employees being automatically fired after they run out of leave.

The Equal Employment Opportunity Commission (EEOC) is taking a dim view of automatic terminations lately — and coming down hard on companies who still those policies.

That’s because under the new ADA, employees who run out of FMLA leave may still be eligible for accommodation under the ADA — and that accommodation could include additional leave.

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  • Joe

    I don’t consider this a particularly tricky question. The simple answer is that you don’t have to terminate any employee, ever, unless they voluntarily self-terminate.

    I often hear HR staffers speak in terms like this. “The employer may terminate” quickly morphs into “The employer MUST terminate.” I understand some folks don’t like gray areas, and want everything to follow a black-and-white flow chart of if-then statements, but this desire for uniformity often leads to a lack of discretion, which then leads to illogical and ridiculous decisions that give bureaucracy it’s stunningly bad reputation.

  • Shannon

    I wonder what the state laws regarding medical leave say. It may be a case that they don’t qualify for federal, but may for state. Also, if this is a good worker, I would tend to try to accomodate them. If they are not working out, this may be an opportunity to make a change.

  • MMAN

    @Joe…you are correct, the employer does not have to automatically terminate the employment relationship. However, if the employer does not have a set standard that they consistently follow (i.e. fire some, keep some) this could also come back later to haunt the company with charges of discrimination. For example, an employer may decide to keep the younger worker even though they were not eligible for FMLA but terminate an older worker who was also not eligible for FMLA. Right there you could have a charge of age disrimination. The same holds true for racial discrimination as well if consistent policies are not followed.

  • MMAN

    @Shannon, you should not use this as an opportunity to get rid of a good worker vs bad worker…you are just asking for trouble here. That is what progressive discipline is for, to weed out the bad workers (poor performers) and utilizing this as such a method could lead to, again, charges of discrimination as stated before. I’m all for terminating bad employees but do it for that reason and not under the guise or pretense of another reason which is totally unethical. It’s underhanded crap like this that gives HR a bad name.