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Law Educator, Esq.
Law Educator, Esq., Attorney
Category: Business Law
Satisfied Customers: 110590
Experience:  All corporate law, including non-profits and charitable fraternal organizations.
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Esq., we've been in contact before, last communication on

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FOR Law Educator, Esq., we've been in contact before, last communication on 8/30/16.Following up on our employee on medical leave for clinical depression, the last update we recv'd was about 9/21 and she noted in email "You will note my return to work date is tentatively set for sometime towards the end of October, pending final evaluation." I asked in email if she could reply to me by Oct 14, but she did not reply. Our office is moving as of 10/24, so I want to send her another email and advise of the date we are officially moving. I have no idea when she is returning, except for the possible date of end of this month. I have probably not been tough enough in emails, but there were doctor notes mentioning suicidal issues, so I have been very gentle & prefer that she gets the care she needs before returning. We would be open to offering a small separation payment, but do not want to be the one to offer that. There are concerns that the nature of our office, small start up environment, is stressful enough without personal challenges.Can you recommend an appropriate email I should send to her at this point in time? She has not asked for any accommodations yet. Her start date was 7/30/15, and she went out on leave late May 2016.Also, if she requests another extension to the leave based on medical documentation recommendation, what options do I have with that?
Thank you for your question. I look forward to working with you to provide you the information you are seeking for educational purposes only.
Under FMLA, she was entitled to 12 weeks of leave, if she does not return to work after 12 weeks, she is not entitled to any further protection. So, you really can tell her that as she did not reply to you as instructed on or before October 14 you considered that she voluntarily resigned her employment and she is no longer employed. You need to cut your losses with this employee, since they did not return within the 12 weeks protected under FMLA, and as an at will employee you can terminate her for not being able to return to work.
If you want to tell her you are willing to offer her 2 weeks separation pay or 3, which is generous, you can do so, but under the law you can simply terminate her for not returning to work or communicating with you by October 14 as you instructed and end this now.
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Customer: replied 9 days ago.
Rather than the FMLA, which she wasn't here a full year when she left, so I don't think she was eligible, but we allowed her the time due to ADA considerations. I was not with the Co. at the time this all occurred, but I believe there were various matters that were related to conflicts & miscommunications with managers, I do not have all details. But since employee had 2 deaths in the family & personal issues, they granted her the time off. You feel I shld simply advise that we need a definite return to work date along with accommodations necessary, and if she doesn't return by the date we will consider her as voluntary resigned. And if she asks for medical extension, simply say we can no longer hold the position open (even though it is a Receptionist type role & can consider a temp.candidate if required).
Thank you for your reply.
Sorry, I missed that start work date. She legally has no protections, even under the ADA and at this point I would terminate her for not replying to you by October 14, not drag this out longer. I would not advise her of anything other than she is terminated as her not responding was deemed her voluntary resignation. I do not think you should keep going with this at this point as she has no legal claims against you.
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