The FMLA leave is over and the employee is not back. Maybe they did not show up on the return date. Maybe they emailed last week to say they are not coming back. Maybe their doctor says they still cannot work. Each of those is a different situation with different rules, and the mistakes HR makes at this point are expensive: terminating someone who was entitled to more leave as an ADA accommodation, recovering health premiums the regulations do not allow, or sending a COBRA notice with the wrong qualifying event date.
This guide walks through the decision in the order HR should take it: identify which situation you have, check whether the ADA or a state law requires more leave, decide whether premium recovery is allowed, send the right communications, handle COBRA and final pay, and document the decision so the next case is handled the same way.
The employee was expected back on a specific date, did not appear and has not contacted you. Before treating this as job abandonment:
The FMLA does not bar enforcing your usual call-in and attendance rules after leave ends, but courts look closely at whether the employer gave a clear return date and applied its abandonment policy as written and consistently.
Under 29 CFR 825.311(b), if an employee gives unequivocal notice of intent not to return to work, the employer's obligations to maintain health benefits (subject to COBRA) and to restore the employee end. If the employee is unsure, those obligations continue. "I don't think I'll be back" is not unequivocal; "I am resigning effective Friday" is. When the statement is ambiguous, ask in writing and get a written answer.
You may require periodic reports on the employee's status and intent to return under 825.311(a), provided the requirement is not discriminatory and takes the employee's circumstances into account. Regular check-ins often surface a decision not to return before the leave ends, which gives you time to plan.
The employee's provider says they cannot return yet, or they can return only with restrictions that prevent essential functions. Under 29 CFR 825.216(c), an employee who cannot perform an essential function because of a physical or mental condition, including a continuing serious health condition or a work injury, has no FMLA right to restoration to another position. But the same paragraph notes that the ADA, state leave laws or workers' compensation law may impose obligations of their own. This is the situation where most separation mistakes happen.
The end of FMLA leave is not the end of the analysis. The EEOC treats additional unpaid leave as a possible reasonable accommodation under the ADA, and it has said that employers with fixed maximum-leave policies may need to make exceptions for employees with disabilities unless doing so would cause undue hardship. The EEOC has also taken the position that requiring an employee to be "100% healed" before returning can violate the ADA.
Before separating an employee who cannot yet return:
Our articles on leave as a reasonable accommodation and when employees exhaust leave cover this analysis in depth.
29 CFR 825.213 lets an employer recover its share of group health premiums paid during unpaid FMLA leave if the employee fails to return after the leave entitlement has been exhausted or expires. The conditions are narrow.
Recovery is not allowed if the employee's failure to return is due to:
If the employee claims a serious health condition as the reason, you may require medical certification. Under 825.213, the employee has 30 days from your request to provide it. If they do not, you may recover 100 percent of the health premiums you paid during the unpaid leave.
What counts as returning. An employee who returns to work for at least 30 calendar days is considered to have returned (825.213(c)). An employee who retires directly from leave, or retires within the first 30 days after returning, is also treated as having returned, so you cannot recover from them.
Paid leave periods are excluded. If paid leave was substituted for unpaid FMLA leave, you cannot recover premiums for that portion (825.213(d)). The regulation treats leave paid under a temporary disability or workers' comp plan as not unpaid, so those periods are excluded as well.
Other benefits. If you continued life or disability insurance premiums during unpaid leave, you may recover only the employee's share of those premiums, whether or not the employee returns (825.213(b)).
Self-insured plans. A self-insured employer may recover only its share of allowable premiums as would be calculated under COBRA, excluding the 2 percent fee for administrative costs (825.213(e)).
How to recover. The amount is a debt owed by the non-returning employee. You may deduct it from amounts owed to the employee, such as final pay, only where federal and state wage payment laws allow, or pursue it by legal means (825.213(f)). Many states restrict deductions from final pay, often requiring written authorization; check your state before deducting anything.
Two practical cautions. First, you cannot make COBRA coverage conditional on repaying these premiums (26 CFR 54.4980B-10, Q&A-5). Second, premium recovery is optional. Some employers decide that pursuing small amounts from former employees is not worth the cost or the employee-relations effect; decide your rule and apply it consistently.
A short sequence of written communications protects both sides. A workable sequence:
Keep every deadline you give realistic and consistent with your past practice. A three-day deadline for one employee and a two-week deadline for another, without a reason, is the kind of inconsistency that undermines a separation.
Under 26 CFR 54.4980B-10, taking FMLA leave is not itself a COBRA qualifying event. A qualifying event occurs if the employee (or a covered dependent) was covered by the group health plan before or during the leave, does not return at the end of the leave, and would lose coverage before the end of the maximum coverage period. The qualifying event occurs on the last day of FMLA leave, and the maximum coverage period is generally measured from that date (unless the plan provides for coverage to be lost later, in which case it runs from the loss of coverage). The employee's failure to pay their share of premiums during the leave does not change this.
Practical points:
See our article on COBRA triggered during employee leave for worked examples.
Final pay timing is state law. Some states require payment on the last day or within a short period after an involuntary separation; others allow payment on the next regular payday. Rules for accrued, unused vacation also vary. Confirm your state's rule before the separation letter goes out, and do not deduct recovered premiums from final pay unless your state allows the deduction.
Close out life and disability coverage, retirement plan participation, flexible spending accounts and any leave balances under the plan documents, and give the employee the conversion or portability information their plans provide. Our employee termination checklist covers the full offboarding sequence.
The file should let someone who has never seen the case understand what happened and why. Include:
Then compare the decision with how you handled similar cases. Consistency is the best evidence that the separation was about the policy and not the leave.
The end of FMLA leave is where FMLA, ADA, COBRA and state wage law all apply at once. Our return-to-work training for HR shows how to sequence them. The online, self-paced Return-to-Work Training & Certification program covers FMLA return considerations and restoration rights, fitness-for-duty documentation, ADA reasonable accommodation, documentation and communication, and coordination with leave administration, with an optional exam for the Certified Return-to-Work Administrator designation. Teams of three or more can enroll together with a manager progress view.
It depends on why. If the employee gives unequivocal notice that they will not return, the employer's duties to maintain health benefits and restore the job end under 29 CFR 825.311(b). If the employee simply does not show up, confirm the return date was communicated and the entitlement is used up, then apply your attendance policy consistently. If the employee is still medically unable to work, consider whether additional leave or another accommodation is required under the ADA or state law before separating.
The FMLA itself does not require restoration of an employee who cannot perform an essential function after the entitlement is exhausted (29 CFR 825.216(c)). But the ADA may require additional leave or another accommodation unless it would cause undue hardship, and state leave and workers' comp laws may add protections. Before separating, ask whether the employee needs more time, get an expected return date, assess hardship and document the process.
Sometimes. Under 29 CFR 825.213, you may recover your share of premiums paid during unpaid FMLA leave if the employee fails to return, unless the reason is a continuing, recurring or new serious health condition, or other circumstances beyond the employee's control. You may require certification, which the employee has 30 days to provide. Premiums for paid leave periods are not recoverable, and an employee who returns for at least 30 calendar days is treated as having returned.
Only if federal and state wage payment laws permit it. 29 CFR 825.213(f) treats the premiums as a debt and allows deduction from sums due to the employee only where those laws allow, or recovery by legal action. Many states restrict deductions from final wages, often requiring the employee's written authorization. Check your state's wage payment law first, and never make COBRA coverage conditional on repayment.
The COBRA qualifying event occurs on the last day of FMLA leave, not the date you process the termination, under 26 CFR 54.4980B-10. The maximum coverage period is generally measured from that date. This applies only if the employee was covered by the plan before or during the leave and would lose coverage. Failing to pay their premium share during the leave does not change the qualifying event date.
29 CFR 825.311(a) allows employers to require periodic reports on the employee's status and intent to return, as long as the policy is not discriminatory and takes the employee's situation into account. Ask in writing, at regular intervals, and ask for a clear answer. If the response is uncertain, treat the employee as still intending to return. Only an unequivocal statement of intent not to return ends benefit and restoration obligations.
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