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For an employee who was given a Notice of Eligibility for…

For an employee who was...
For an employee who was given a Notice of Eligibility for FMLA with the terms and conditions noted on the notice, is it legal to not accept her back to the company if she fails to comply with the provisions written on the FMLA Notice?
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Customer reply replied 1 month ago
Please see attached FMLA form
Answered in 4 minutes by:
3/19/2018
Marsha411JD
Marsha411JD, Lawyer
Category: Employment Law
Satisfied Customers: 20,759
Experience: Licensed Attorney with 29 yrs. exp in Employment Law
Verified

Hello,

Thank you for your post. Can you tell me what you mean by "fails to comply?" In what way? Are you the employee or the Company? What has occurred? If I don't answer right away, I am just temporarily away from my office and will respond as soon as possible.

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Customer reply replied 1 month ago
We are the employer. She didn't comply with the provisions on the Notice of Eligibility, such as not submitting progress report and not paying her health insurance.

Thank you for clarifying that but I fail to see anywhere in the FMLA paperwork that requires the employee to submit a progress reports during their FMLA period or pay their health insurance. Can you point out the exact paragraph and supply it in quotes in your response where that is contained?

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Customer reply replied 1 month ago
I apologize, I sent you the wrong attachment. Here's the correct one.

Thank you for that. First, just to be clear, since I am not your attorney, as we cannot form an attorney-client relationship, I cannot give you legal advice as to a specific case. However, I can discuss the legal issues as they relate to the issue in general. As an employer I would always recommend that you have an attorney available to the Company to consult with on legal issues, especially ones like this that are very fact specific and where getting the action "wrong" can be quite costly for the employer.

In addition, with the exception of fraud, I would never recommend to my own clients that an employee be terminated for not complying with the provisions of the FMLA form. Again that assumes no fraud and also that they return by the end of the FMLA period.

That said, the insurance provision that you provided, does not allow for termination. If you read it, it only allows for the possibilities listed, which are lapse or recovery of any payments made by the employer to maintain coverage as noted in the section.

As for progress reports, I have never seen that section used and quite frankly I would never recommend terminating someone who did not provide progress reports. It is allowed under the Act, but it would be a very weak reason to terminate an employee unless there is evidence of fraud or that the employee is looking for another job. Once approved, an employee has an absolute right to that time off as certified.

Therefore, although you will ultimately have to decide what steps you want to take as the employer, I would give second thoughts to not allowing the employee to return for the reasons you mentioned. Again though, highly recommend that the employer have a local attorney walk them through the specific case so as to avoid expensive litigation and/or an audit/action by the U.S. DOL.

Please feel free to ask for clarification if needed. If none is needed, then if you could take a moment to reply to this answer and let me know that I covered your issue, then the Site will give me credit for assisting you today. Thank you

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Customer reply replied 1 month ago
Thank you very much!

You're very welcome.

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