It was clearly communicated to the employee that she would have 12 weeks of FMLA leave. She did not sign the form but she was given the paper and it is also in our policy and procedure manual. She was to keep us informed of her status every 30 days during the leave. After not hearing from her for the duration of the leave she emailed us on the 13th week stating she was ready to come back to work which would be a total of 15 weeks of FMLA. When reviewing her original leave paperwork we found that it was not caught by HR that she had originally communicated in writing that she was taking a 15 week FMLA leave. We would not have approved it if we had known. Can we terminate her?

I wouldn't. She asked for 15 weeks and by virtue of your silence, you approved it. At the onset of her leave, you should have communicated that you were only able to grant 12 weeks.

We send our FMLA letters out and require recertification every 45 days (unless it was pregnancy related). All communication is done in writing.

What state are you in and what was the reason for the leave?

Thank you for responding. We are in the state of California and she was on leave to have a baby.

Do NOT fire her...

If she qualified for FMLA, she would qualify CFRA as well. As such, the medical portion of the time she is on leave due to the disabling part of the pregnancy is covered under PDL and FMLA. (PDL is Pregnancy Disability Leave for all employees in CA that work for employers with more than 5 employees. This requires that you provide job protected leave for up to 4 months for the disability associated with the pregnancy.)

Once your employee is cleared from the disability portion of the pregnancy, she still has 12 weeks of bonding time under CFRA (California Family Rights Act). If you terminate her after only 15 weeks (presuming the majority of the time was due to the pregnancy related disability), you are in violation of CFRA. Not pretty.

I would send out a letter and retroactively designate the disability as PDL/FMLA and the balance as CFRA. If you want to PM me her specific dates of disability and dates of leave, I can help you with the designation.

Finally--if you are going to be handling this type of leave in the future, you need to brush up on PDL and CFRA. CA is a whole different enviornment with a whole different set of rules.