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Ask Law Educator, Esq. Your Own Question
Law Educator, Esq.
Law Educator, Esq., Attorney
Category: Employment Law
Satisfied Customers: 116746
Experience:  20+ Years of Employment Law Experience
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We are a national non-profit organization. Our corporation

Customer Question

We are a national non-profit organization. Our corporation is registered in the state of DE and our headquarters are in NY; in Manhattan. We have an employee who filed an age and race discrimination claim. We conducted an internal investigation and found no substantiating evidence. She was not happy with the outcome and has filed the claim with the EEOC. We wrote and submitted our response and are awaiting them to finish their investigation. However, in the meantime, the employee went out on FMLA and once FMLA ended, she returned to work for a brief period of time and then brought in medical documentation that she needed to go out on Short Term Disability. Her Short Term started August 1st and her documentation said she would return to work in early November. I received an email from her today that her leave needs to be extended to a return date of February 1st which is also the end of Short Term Disability. If it extends past February 1, she will need to go on Long Term Disability. At what point are we under no obligation to keep her position open and can look to replace her? We don't want to do anything that would seem to be in retaliation for the claim she filed with the EEOC but on the other hand, this is proving to be a hardship for the organization. this employee is a financial analyst in our finance department. At what point are we under no obligation to keep her position open and can look to replace her?
Submitted: 9 months ago.
Category: Employment Law
Expert:  Law Educator, Esq. replied 9 months ago.
Thank you for your question. I look forward to working with you to provide you the information you are seeking for educational purposes only.
Once her 12 weeks of protection are over under FMLA, you have the right to terminate the employee as they have no further job protection under the law. Until the EEOC disposes of her claim though, you run the risk of your termination being deemed retaliatory, so you need to do this carefully by sending her a letter informing her that her FMLA time is expired and she is an at will employee and set a date for her to return to work within 2 weeks and inform her that if she is not able to return to work you will have no choice but to consider that her voluntary resignation from employment. You need to be able to protect yourself and prove you are not retaliating against her but are simply following the law under FMLA that allows you to terminate the employee after their 12 week leave has ended.
Any disability claims with the insurance are based on the terms of those policies and can continue even if you terminate her employment.
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