I am on FMLA leave from my job, and I don't want to go back. Can I still get a severance?

It's common occurrence.  Maybe you just had a baby, and took some unpaid leave.  Maybe a family member got sick, and you needed some time off.  Maybe you got sick yourself, and had to miss work for a number of weeks.  In any case, right now you aren't going to work, but under the FMLA, or Family Medical Leave Act, your employer is holding your job open for you when you get back from leave. 

Except you don't want to go back.  Maybe you decided that you want to be a stay-at-home dad or a stay-at-home mom.  Maybe you found a new job that is more flexible, and will let you care for your sick relative long-term.  Maybe you have decided to go into business for yourself.  In any case, while you were on FMLA leave, you've made up your mind that you did not want your old job back.

Before you tell your old employer about your new plans, you should decide whether you want to negotiate a severance, and, if so, you should give careful thought to what you tell your employer, and when.

As we have discussed in previous posts, one simple question is ask yourself is this:  What are all the things your disliked about your old job?  Because some of the reasons why you don't want your old job back might be the basis for negotiating a severance:  

  • Did your old company ever fail to pay you, or take a cut of your commissions, or "forget" to pay you for overtime, or promise a bonus but not follow through? 
  • Did your old boss or co-workers ever say or do anything that made you uncomfortable for being who you are?  Was there someone at work who sometimes harassed you, or bullied you, or made remarks that just were not okay?
  • Did your old company make it hard to take family medical leave?
  • Did your old company refuse to accommodate you when you got sick?
  • Was your old company open to people of all backgrounds, races, religions, and sexualities?

If any of these situations rings true, you might have a legal claim against your old employer.  Your employer likely would be interested in avoiding even the possibility of a lawsuit, and so might be willing to negotiate a separation agreement with you, even though you are on FMLA leave.  In that separation or severance agreement, you would promise never to sue your company for anything that happened during your employment, and your company would pay you a severance.

Even if your old company was totally upstanding—respectful, accommodating, and fully professional—you may still be able to negotiate a severance while on FMLA leave.  For example, many companies ask departing employees to sign "separation agreements," in which the former employee promises not to compete for their old employer's clients or customers, or not to disclose their former employer's trade secrets or proprietary information.  If your former employer wants to control your future behavior, they should pay you for that, even though you are on FMLA leave.

Many employers shy away from firing anyone who has recently returned from FMLA leave.  Simply put, the employer does not want to appear to be punishing its employees for having exercised their rights to family medical leave.  What this means is that, if you are on FMLA leave and you know you do not want to return to your job, you have leverage that can be used to negotiate a severance.

If you are on medical leave from a job you don't want to return to, and if you want advice on how to negotiate your departure, Granovsky & Sundaresh is here to help.  Call or e-mail us any time.