The Family and Medical Leave Act (FMLA) provides eligible employees up to 12 work weeks of unpaid leave a year, and requires group health benefits to be maintained during the leave as if employees continued to work instead of taking leave. Employees are also entitled to return to their same or an equivalent job at the end of their FMLA leave, but some may choose not to.
This is a fairly common occurrence. Maybe you just had a baby and took some maternity leave, or received a new job offer from a different company while on medical leave. Regardless, right now you are not going back to work, but under the FMLA, your employer is holding your job open for you when you get back from leave. Unless you have an employment contract limiting your ability to quit, you are completely within your rights to quit your job.
Before you tell your old employer about your new plans, you should be aware of the legal information, consequences, and protections surrounding this decision, and how to proceed during this job-protected leave.
FMLA entitles eligible employees of covered employers to take unpaid, job-protected leave for specified family and medical reasons with continuation of group health insurance coverage under the same terms and conditions as if the employee had not taken leave. Eligible/covered employees are entitled to:
Although most employers understand this law, FMLA provides 12 weeks of protected leave for caring for yourself and your family members, but others are not as well known. This section of notice can prove extremely challenging, especially for small employers. Companies have an established set of rules for employees who wish to take FMLA leave in the absence of an official employee notification letter. This page is intended to help your employees and employers understand their job responsibilities in a positive manner.
Military families receive additional leave entitlements, but the notice requirements for military leave are generally the same as other situations. Conversely, it's important to note that there are several exclusions – cases in which the Act's protections and requirements don't apply to a covered employer:
For more information about the FMLA provisions and which companies, employees, and circumstances are covered, refer to The Employer's Guide to The FMLA from the U.S. Department of Labor.
Generally, you are not required to give any particular amount of notice, although a letter of two weeks' notice to your boss is customary. Your decisions here will depend on what kind of relationship you hope to maintain with your employer and how you think your employer might react. Giving as much notice as possible allows your employer time to hire a replacement and plan for the future. This might leave you the best option for the future, in case you need a reference for a new job and do not want to burn bridges.
On the other hand, once you give notice that you are definitely not returning to work, your employer is free to replace you and terminate your employment. Although the FMLA requires your employer to return you to your former or substantially similar position once your leave is over, this obligation ends once you give notice that you will not return to work. For example, you might find yourself cut off from health insurance and other benefits and any employer-provided paid leave programs you were using. (Many employees have the right to continue their health insurance after quitting under COBRA, but you'll have to pay the full premium if you go this route.) For this reason, many employees feel it's too risky to give notice well in advance.
Only you can determine at which point you will resign or return to work, below we will answer some frequently asked questions about how to proceed, from how much notice should you provide your former employer to dealing with co-workers.
FMLA does not forbid an employee from ending the FMLA leave of absence early. Even though an employee takes a FMLA leave of absence, there is no reason an employee cannot end that leave of absence early, for any reason, even if it is to take another job.
FMLA does not require that you must return to your employment at the end of your leave of absence, or provide two weeks notice of not returning to the company. Unfortunately, you may be immediately terminated if you provide two weeks notice.
If you give unequivocal notice of intent not to return to work to their company, the employer’s obligations under FMLA to maintain benefits (subject to COBRA requirements) and to restore you to an equivalent position cease. However, these obligations continue if an employee indicates he or she may be unable to return to work but expresses a continuing desire to do so.
Although employers generally have the right to terminate an employee who provides unequivocal notice of their intent not to return to work, that right is not absolute, and it may not represent employment best practices. For example, you may not be allowed to immediately terminate an employee who has expressed her intent not to return to work due to an ongoing medical condition or other qualifying event under the FMLA, nor may you terminate an employee for discriminatory reasons. If you believe you may have been wrongfully terminated, contact legal counsel at Freeburg and Granieri, APC today on our website to talk to an attorney.
As an employer, before terminating an employee who notifies you of his intent not to return to work, you should evaluate your business requirements, company culture, and employment priorities. If you require legal assistance with termination proceedings, contact legal counsel at Freeburg and Granieri, APC today on our website to talk to an attorney.
Alternatively, if you have decided not to give notice during your leave of absence and plan on quitting your first day back, not giving notice sometimes entails losing out on stock or stock options, and certain other benefits and payments. One important thing to consider though: does your Employee Handbook, employee equity plans, or Company Policies say something along these lines: “If you do not give at least 15 days (or 30 days) notice of resignation, you will not receive your stock or stock options, or some other benefit or payment.” Consider, too, what personal property may be in your desk or office, or on your computer, and make sure to prepare and send a list to your boss requesting its prompt return.
There are some legal consequences for quitting your job while on FMLA leave, commonly a loss of services. For example, you will not be eligible for unemployment immediately. Unemployment laws are available only to those who lose their jobs, not to those who quit voluntarily. Although many states allow employees who quit for certain compelling personal reasons to remain eligible for unemployment, quitting to stay home with a healthy baby will disqualify you.
You cannot collect unemployment if terminated while on short-term disability – at least not right away. You must recover and be physically able to return to work to be eligible for unemployment benefits. Applying for medical unemployment after meeting the three universal criteria to qualify:
In summary, you can collect unemployment if terminated while on short-term disability only after you recover and if your state has an accommodating definition of a good cause reason.
You might have to pay back your health insurance premiums. If your maternity leave was covered by the FMLA, your employer was legally required to continue your insurance benefits during your time off. If you decide not to come back from leave, your employer has a right to seek reimbursement of any money it paid to keep your healthcare benefits in place. In this situation, you'll have to pay back not only the company's share of the premium, but also your share of the premium—if you failed to pay it and the company paid it for you. However, this right to reimbursement does not apply if you return to work for 30 days or more. Some states family leave laws have similar reimbursement provisions.
You do not have to pay back short-term disability benefits if you quit your job. However, your decision not to return to work could impact the funding of insurance premiums. Loans for people on short-term disability benefits can help you raise money to fund the monthly costs of two crucial insurance programs you might want to continue because you are under a doctor’s care.
You may have to pay back short-term disability premiums if you resign and want the coverage to continue – many employers fund premiums through a payroll deduction, which ends when you stop working for the business.
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