Legal Question in Medical Leave in Florida

Employees Resigning During FMLA

I am an HR person who handles all FMLA. We recently had an employee contact us and inform us he was resigning he has sold his house and moved to an other state. He called on one day and wants to have his date effective two weeks in the future. My guess being so we can carry his benefits. Can he resign during FMLA and fute date it his resignation? In addition if someone resigns during FMLA what date is used?

Asked on 7/24/07, 8:29 pm

1 Answer from Attorneys

Re: Employees Resigning During FMLA

First, since he resigned, he no longer has FMLA rights. You have to be planning on returning to have rights. See 29 CFR 825.309(b). (Notice of intent not to return must be unequivocal.)

Second, otherwise the resignation has nothing to do with the FMLA.

Third, he can "future date" the resignation if you allow it (most employers ask for notice, so future dating is the norm and you should be glad he gave you notice so you can plan), but there is no law one way or the other. Check your resignation policy to see what it says about notice. (Notice can be requested but not required, although you can condition the payment of accrued leave or other items on notice.)

So, the date of resignation would be the date the employee gave, unless you terminate him before that. Then it would be the termination date, but he could try to file for unemployment and argue that he could have changed his mind about the resignation and was in fact fired. (He might also bring an FMLA claim although, as described above, he has no rights if he unequivocally resigned.)

If you need an attorney to help with your FMLA issues or policy, or any other policy or employment matters, please feel free to email directly to me.

Jeff Sheldon

Jeffrey L. Sheldon

The Sheldon Law Firm

CAVEAT: This is only general advice based on limited facts and knowledge of the situation. It thus can not be relied upon as legal advice nor is the author responsible or liable for any actions by the parties involved in the matter.

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Answered on 7/26/07, 8:49 am

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