From the Hotline: Replacing an Employee on FMLA

Question: Does an employee who will be taking FMLA need to provide the company notice if she doesn’t intend to return? Would that notice allow the employer to then hire a new employee for that position before the 12 weeks of FMLA leave are exhausted?

Answer: During an FMLA leave an employer may periodically request reports on the employee’s status and intent to return to work. An employer, however, may not refuse to reinstate an employee able to return within the 12-week leave period because he or she failed to report on his or her status and intent to return. There is no specified time frame or absolute notice requirement under the FMLA regulations for an employee who does not intend to return, especially in at-will employment arrangements. In fact, it might even benefit the employee not to inform the employer, as the employer’s obligation to maintain benefits under the FMLA ceases when an employee makes it clear that he or she does not plan to return to work.

As a practical tip, if an employer believes an employee may not return from leave, the employer could recruit and hire a person under the knowledge that the individual is filling in for a person who is on FMLA who may or may not return. This way, if the employee does return and needs to be reinstated – the replacement employee will not be “caught off guard” if he or she will be displaced as a result.