Must An Employer Permit An Employee To Rescind A Voluntary Resignation And Then Go Out On FMLA?

A number of employers have recently had employees voluntarily resign from employment and then subsequently seek to rescind such resignation and go out on Family Medical Leave Act (FMLA) leave.  Must an employer permit such a rescission?  Depending on the circumstances, maybe not.

29 Code of Federal Regulations 825.311 – Intent to Return to Work, provides: “(b) If an employee gives unequivocal notice of intent not to return to work, the employer’s obligations under FMLA to maintain health benefits (subject to COBRA requirements) and to restore the employee cease . . .”

Employers faced with this scenario should consider the following:

  • If at any time during employment, an employee conclusively resigns or in any other way indicates the employee is terminating employment or not returning to work, the employer should request a writing from the employee advising of such.
  • The employer must determine if the employee’s resignation is, in fact, conclusive and there is no reason to interpret the employee’s statement that the employee is resigning or not returning to work as indicating that the employee is requesting leave for a serious health condition.  If the employee’s resignation or termination is conclusive, the employer would have no duty to inquire further as to whether the terminating employee was requesting leave for a potentially FMLA qualifying reason.
  • Where such employee’s decision to resign or not return to employment is voluntary and conclusive, an individual is no longer an employee of the employer and is no longer entitled to any FMLA benefits.

For more information on this topic, or if you have any questions regarding FMLA or other labor and employment matters, you may contact Archer attorney Steven B. Harz, Esquire at sharz@archerlaw.com or one of Archer’s other experienced labor and employment law attorneys.