Legal Question in Medical Leave in Maryland

Re: notice of termination while on FMLA

This is one of those tough situations where a sympthetic claimant has a serious health problem and we naturally want her to be protected. The company, though, does not have to retain an employee who cannot work.

As for your specific questions: First,it would be legal to discharge the woman after her protected leave (12 weeks in a 12 month period) expires, if she cannot return to work. In other words, if she cannot work, the company does not have to keep her employed. (One exception is if she could work with accommodation, the company might have an obligation to provide a reasonable accommodation under state and/or federal law.)

Second, it is legal to offer the position to her later, if she can return, and then to rehire her. That is no different from hiring a new person (although any seniority, pension or other rights may be bridged uncer company policy). It may seem silly to do it this way, but it saves the company from the expense of keeping her on the payroll (health benefits, etc.). It also brings finality to the situation for now. That also answers the "why would they do it this way" question.

Last, she can only apply for more FMLA leave if she is entitled to a new set of 12 weeks. That would depend on when the next 12 month period starts. Some companies count it on an annual calendar basis (Jan to Dec.); some count it from the date of the leave - for example, if you start leave on 9/1/2, you are not entitled to 12 more weeks until 9/1/3. There are other legal ways of determining the 12 month period as well.

There also might be leave entitlement under company policy (check the handbook or other written policies, if any, or call your HR dept.), or she might have additional vacation or sick leave she could request. (Some might even have accrued while she was out.)

None of those guarantee that leave, if available, would have to be granted, but it is worth looking into.

As with most of these situations, more facts are needed before the best advice can be given. Leave situations often involve FMLA, ADA, workers' comp., short and long term disability policies, discrimination issues and company policies, and thus can be very complicated.

If your co-worker wants to keep the job (rather than reapply later), she should consult with an attorney to review her rights and possible courses of action.

Feel free to pass my name along should she desire a free consultation. I can be reached at 301.604.2497 or [email protected].

Best of luck to her.

Jeff Sheldon

Jeffrey L. Sheldon, Esquire

The Sheldon Law Firm

6932 Mayfair Road

Laurel, MD 20707

301.604.2497

fax: 301.776.3954

[email protected]

http://www.SheldonLawFirm.com

Disclaimer: This posting does not and is not intended to constitute legal advice. It is not confidential, nor is it privileged, and it does not create an attorney-client relationship. Please consult with an attorney for advice specific to the facts of your case.