Employment Law Questions? Ask an Employment Lawyer.
Thank you for your question. I look forward to working with you to provide you the information you are seeking for educational purposes only.
How many employees do you have? What state are you in? How long has she been out of work?
Thank you for your reply. I apologize for the delay, I was working with another customer who took more time than expected.
I understand she has not been out 12 weeks yet, are you an employer who qualifies under the Family and Medical Leave Act (50+ employees and she has worked there at least the last 12 months and 1250 hours in those 12 months)?
Thank you for your reply.
So, based on what you are saying, if you do not meet the definition of the employer under FMLA (not having 50+ employees) then you can terminate her and do not have to provide her any limited duty assignment if one is not available. However, this does not mean she could not sue or file a complaint for discrimination if she chooses and tie you up in litigation.
You do not have to offer her limited duty, so you can give her a letter telling her if she cannot return full duty without restrictions you have to terminate her as you have no limited duty positions.
If she does not fall under the requirements for FMLA, you can terminate her for no reason or any reason at all as she is an at will employee. Thus, you are not terminating her for being out of work under FMLA, as she does not seem to qualify based on what you said above. You are not terminating her for her disability, as it is not a permanent disability, but a temporary restriction and you are not liable to provide accommodation under the ADA if it is a temporary restriction, so you could terminate her for no reason at all if you choose.
You also have statements of displeasure with her from the customers, so that is a reason that has nothing to do with any of her surgery or anything else, and that is a basis to cover you for termination as well.
You said you did not have 50+ employees, you said you had 40 employees, so FMLA does not apply to her. If you have MORE THAN 50 EMPLOYEES, then she is entitled to 12 weeks of job protection and you cannot terminate her (that is why I asked you those very specific questions and my response was based upon your answers to those questions).
If you have more than 50 employees, you have to allow her to return to work because her leave for 12 weeks is protected under FMLA. If you do not have 50 or more employees, then she has no protection legally under FMLA and you do not have to return her to employment, as she is an at will employee and could be terminated for no reason at all or any reason other than her age/race/sex/disability/national origin.