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What Should An Employer Do When an Employee on FMLA Leave Says They Will Not be Returning to Work?

June 28, 2012

Question: An employee is out on FMLA leave to care for her newborn baby. Before her leave ends, she notifies her employer that she actually does not intend to return to work. Does the employee still have any restoration rights? Can the employer recover any health care premiums they paid during the employee’s FMLA leave?

Answer: While employees are generally entitled to be restored to the same or equivalent position following their return from FMLA leave, the Department of Labor regulations provide that in this situation, when an employee gives unequivocal notice of his or her intent not to return to work, the employer’s obligations under FMLA to maintain health benefits and restore the employee cease immediately. However, beware that unequivocal notice means that the employee leaves an employer with no doubt that they will not return.

Under the regulations, the employer may also recover health care premiums paid during a period of unpaid FMLA leave in this situation, unless the employee is not returning due to “circumstances beyond the employee’s control” – a phrase which the DOL advises should be broadly construed, but which does not include a situation where an employee simply chooses to stay home with her “well, newborn child” (rather than one with a serious health condition).

Word to the Wise: Employers who choose to recover health care premiums when permitted to do so should be cautious that they do this for all employees who indicate they will not return after an FMLA leave. An employer who only recovers health care premiums from a new mom, but not for a male employee who does not return to work after FMLA leave, may be faced with a claim of gender discrimination even if the different treatment is inadvertent.