I usually get that when my answer isn't the one he wanted to hear.
You can always keep the temp around for an extra 30-45 days after the employee returns.
Once the employee has returned, the FMLA issues have ended or expired, you can simply tell the person you no longer require their services.
Just because a person is on FMLA doesn't mean they have a RIGHT to lifelong employment.
You can't use FMLA as an excuse to terminate them, but they can be terminated.
Employees out on FMLA possess a statutory right to be reinstated to the same or equivalent job upon returning from such leave. Employers think employees out on FMLA are shielded from from termination regardless of any behavior or performance problems that MIGHT justify such an employment decision. Beyond disciplinary issues, there is no RIGHT to lifelong employment.
The protection under FMLA is not without certain exceptions, such as information discovered during the leave period that justifies a decision to terminate the employee. The bottom line when contemplating such terminations during or after FMLA especially performance issues, TIMING is everything.
An employer must show that the employee would have been terminated even if that individual had not taken FMLA. The reason(s) for termination should occur relatively close in time to the decision to terminate the employee. Generally the longer an employer delays between the two occurrences, the less reasonable the termination appears. Thereby making it more likely than not, such an action could be viewed as retaliation for exercising the FMLA option or interfering with an employee's rights, both of which are prohibited conduct under FMLA.
If you have ANY doubts about terminating any employee, it is always best to consult your legal staff, or corporate counsel. But, an employer is always able to exercise its rights under "at will" employment.
The bottom line here is that an employee is always FREE to terminate his or her employment. That holds true for the employer, too. Barring any CBA or employment contract, an employer and its employees are always free to part ways without explanation.
I've found that when explanations are offered by employers, that's when the trouble often starts. Its easier and simpler to to say, "We no longer have need for your services. Here's your final paycheck, and we wish you well."
I think this is one of the best white papers I have have found on the topic of terminating employees during or after FMLA. Its written in layman's and HR speak, not "legalese". It also offers some good, common sense advice and tips.
http://www.kansastag.gov/AdvHTML_Upload/files/FMLA-5-Slip-Ups-White-Paper.pdf
