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wallstreetfighter
wallstreetfighter, Employment Lawyer
Category: Employment Law
Satisfied Customers: 16114
Experience:  14 years exp, General counsel for National Corp. firms, Hostos College instructor, Represented employees in discrimination lawsuits
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I have an associate who was on FMLA. She was due to return

Resolved Question:

I have an associate who was on FMLA. She was due to return from leave on 5/31. She has not called or contacted us at all. Is there a certain time frame I have to give an associate before we can term her based off of Failure to Return from FMLA?
Submitted: 1 year ago.
Category: Employment Law
Expert:  wallstreetfighter replied 1 year ago.

wallstreetfighter :

Hello I am a licensed attorney here to help you with your question, please review my response and do not hesitate to ask for clarification

wallstreetfighter :

Has she taken 12 weeks of FMLA?

wallstreetfighter :

Have you sent her a letter requesting notice?

Customer:

No, she has not. She only took approximately 7 weeks, but based off of the Medical Certification, she was allowed 6 weeks after delivery of the child. The 6 weeks, would have put her returning 5/31. I haven't sent her anything yet. That is what I am checking on. Do I need to send her a letter?

Customer:

Based off the information I get from other employees, she has moved and we are unable to contact her...

Customer:

Phone doesn't work plus she hasn't kept in contact with us like requested.

wallstreetfighter :

If you have her last known address, you should send a certified letter to that address, stating that she has not not returned on her certification date, and that she will be terminated unless she requests further FMLA time,

wallstreetfighter :

Under the law,

wallstreetfighter :

her certification date, is the date in which her FMLA expires,

wallstreetfighter :

since her FMLA rights were over on 5/31 and she did not request further time,

wallstreetfighter :

you can terminate her as Missouri is an at will state,

wallstreetfighter :

However, it is best practice to send the letter,

wallstreetfighter :

to protect yourself from any future claims,

wallstreetfighter :

In Bardwell v. Global Santa Fe Drilling Co., No. H-06-0171, 2007 U.S. Dist. LEXIS 62106 (S.D. Tex. Aug. 23, 2007), Bardwell worked on an off-shore oil rig. Six crews of employees worked staggered 21-day shifts on the rig, with 21 days off. A helicopter was used to transport employees to and from the rig.


Bardwell was scheduled to report to work on January 7. She called two days before to report she was ill and would not make it. She supported her leave request with medical documentation. She was subsequently cleared by her doctor to return to work on January 20. Bardwell informed her supervisor that she would be able to return to work on January 20 for the last week of her 21-day hitch. Bardwell return to the rig by helicopter was scheduled for January 21. Bardwell failed to report to work on January 21. She was subsequently terminated.


Bardwell testified that she called her employer from home on the 19th and 20th to report that she was ill and would be unable to report for work. The employer maintained that it did not receive any calls from Bardwell. Based on an examination of her telephone records, the court concluded that Bardwell had not called her employer on the 19th and 20th as claimed. The court found that Global Santa Fe had a reasonable and good faith belief that Bardwell had failed to advise them, in advance, that she would be unable to return to work on the rig as scheduled on January 21.


The court concluded that, even assuming Bardwell's absence was covered by the FMLA, employee's who fail to comply with legitimate reporting requirements set by their employers are not entitled to reinstatement. Nor does the FMLA protect employees from discharge for reasons other than requesting FMLA leave.

wallstreetfighter :

As the Court case states above, you can terminate her, without any issue,

wallstreetfighter :

If you have any further questions please do not hesitate to ask.

wallstreetfighter :

If satisfied please provide us with positive feedback.

wallstreetfighter, Employment Lawyer
Category: Employment Law
Satisfied Customers: 16114
Experience: 14 years exp, General counsel for National Corp. firms, Hostos College instructor, Represented employees in discrimination lawsuits
wallstreetfighter and 8 other Employment Law Specialists are ready to help you
Expert:  wallstreetfighter replied 1 year ago.
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