Can we fire an employee who has used up his FMLA leave?

We have an employee who has been out under NJ state disability insurance for five months, and has therefore exhausted his FMLA leave. We have not terminated him and his state disability benefits are near ending. Can we terminate him? And will he be able to collect unemployment thereafter?

Posted  04-22-2015

Ann Kiernan replies:

Termination: It depends.

Under both NJ and federal disability law, a leave of absence could be a reasonable accommodation for a disability. However, an indefinite leave is not reasonable, (Lozo-Weber v. State, 2012 N.J. Super. Unpub. LEXIS 851 (App.Div. Apr. 13, 2012) employee held properly terminated when, after nine months of medical leave, employee did not know when she would be back to work), and if extending leave creates an undue hardship for the business, then it is not reasonable, either. (Henry v. United Bank, 686 F.3d 50 (1st Cir. 2012) continued absence of credit analyst was an undue hardship because: co-workers and the supervisor had taken the analyst’s work, thereby straining the department; no other employee was available to temporarily fill the analyst position; hiring a temp was not an advisable business practice, due to the confidential client information and the particularized training needed; and the bank was expecting an increase in new loans, creating further stress on a short-handed staff.)

Unemployment: It depends.

If the employee has recovered sufficiently to be able to look for work, then he can collect unemployment. If he is still disabled when he becomes unemployed, then he cannot, since unemployment benefits are granted only to those who are ready and able to work.

Information here is correct at the time it is posted. Case decisions cited here may be reversed. Please do not rely on this information without consulting an attorney first.


About the Author:

Ann Kiernan has litigated claims of wrongful discharge and discrimination before state and federal courts and administrative matters before the New Jersey Division on Civil Rights, the National Labor Relations Board and the Equal Opportunity Employment Commission, representing both employers and employees. Ms. Kiernan co-hosted The Employee Rights Forum, a weekly radio call-in show reaching up to a half-million listeners in the New York metropolitan area, and her articles on employment law have been published in many books and magazines. Both as a firm partner and as a director, Ms. Kiernan gained solid experience in management and human resources compliance. She has worked with Fair Measures since 1997.