A client recently received a demand letter from an attorney representing a former employee who suffered a serious neurological incident. The employee’s spouse provided a doctor’s note indicating that the employee could not return to work for at least a year, if ever. In response, the employer terminated the employee, partially out of an attempt to allow him to collect unemployment insurance benefits. The demand letter accused the employer of violating the Americans with Disabilities Act (ADA) as well as the Family and Medical Leave Act (FMLA).

The ADA claim is relatively easy to address given the employee’s inability to perform the essential functions of the job for an extended period of time. The FMLA claim is more tricky. Under the statute, an employer can end an employee’s FMLA leave if they give unequivocal notice of their intent not to return to work. In this situation, the employee had not provided such notice, although the medical information made clear that 12 weeks of leave would not be anywhere near enough to permit the employee to return to work.

Even if the employer inadvertently violated the FMLA, the damages available to the employee are unclear. If the employee lost group medical insurance coverage outside of COBRA, this could result in a claim for compensatory damages. The typical lost back and front wages claims should not apply to these situations where the employee could not return to work during or after the FMLA leave period. Liquidated damages only double those lost wage amounts.

Employers faced with potential long-term employee absences should place those eligible employees on FMLA leave regardless of the absence of any expectation that the employee will return to work. Without that unequivocal notice of intent not to return, it is advisable to place the employee on leave and delay the termination decision until the 12-week period has expired.