Human Resources News & Insights

Answers to tricky HR questions: Laying off an employee on FMLA leave

Our team of experts fields real-life everyday questions from HR managers and gives practical answers that can be applied by any HR pro in the same situation. Today’s question: What are the rules on laying off an employee who’s on FMLA leave?

Question:
We’re finding it necessary to go through a layoff, and one of the employees we have to let go is on FMLA leave. Are we on safe legal ground if she’s included in the group of laid-off employees?

Answer:
Probably, but keep one thing in mind, suggests Linda Hollinshead, an employment-law attorney with Wolf, Block, Schorr & Solis-Cohen. If the employee files a complaint that the company laid her off because she was on FMLA leave, the burden of proof falls on the company to show that the leave had nothing to do with the layoff.

Showing that she was part of a team being laid off is usually enough to meet the standard of proof. But you can see how you might have a problem if she was the only one laid off. Then you may need even more backing, such as documentation showing she was the lowest performer in her group or the one with the least seniority — if you’re using either of those as a criterion for deciding.

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  • Maria

    I have a questions regarding medical insurance for an employee who is on disability. Is there a law that states how long the company has to keep the employee’s medical insurance or does the automatically become “cobra”.

  • Karin

    I think it depends on the FMLA leave practice. You are required to pay the health insurance while the employee is on FMLA, but if they don’t return to work, you are within your rights to request reimbursement from them. If the emloyee is just on disability (no FMLA application), I would look at the STD/LTD policy that you have and consult the insurance company you hold the policy with to determine the requirements.

  • Jackie

    It has come to a point where we have to lay off an employee. Do you have to lay off the last employee hired?

    Thank you.

    Jackie

  • Christina

    Jackie,

    Depending on what your company’s policies are and what you’ve typically done in the past, you don’t necessarily have to lay off the last person hired. You can base your decision on other factors, such as performance or need for the position. Just make sure you document your decision in case it comes into question.

  • http://HRMorning JoElla

    How do I handle an employee that uses the restroom too much. Approximately 2 hours a day?

  • Karin

    You need to find out if there is a medical reason why this person is in the bathroom so much. You don’t want to open your self up to an ADA lawsuit with the new amendment attached to it.

  • Kimberly

    We are having trouble getting our company-owned equipment back after terming employees. To prevent this in the future, we are going to have all employees sign a document stating we can delay their last paycheck if the items are not returned by a certain date. In addition to this, they will lose the right to be paid for any Paid Time Off earned but not taken. Does anyone have a better solution?

  • Christina

    Kimberly, we have the same policy only we don’t follow it. We threaten, but know that it is against the law to withhold pay. The time length varies by state, but each state has a different time requirement for you to deliver the final paycheck, based on the type of termination.

    We never pay out time off, though, but are careful to state that it is unearned.

    If we do a layoff, we offer them some extra pay and can withhold that while we wait for equipment, since it was not technically earned.

  • http://www.hrmorning.com Danielle

    I have an employee who just had a baby and she is due to come back from her FMLA. She was a problem employee before she got pregnant, but I was hesitant to discharge her since I was afraid of a law suit. Now that she is due to come back I would like to know if I have to bring her back or if I have the right to discharge her or lay her off for poor attitude.
    I suggested we bring her back in another dept. and see if her attitude has change and if not them we will have a up to date reason to discharge her.
    Please let me know what the best course of action would be in this situation.

  • Karin

    Oh Danielle, if you haven’t documented the issues, you have no grounds to terminate her. You are asking for a law suit to happen. Now, you are well within your rights to “restructure” the company and place her in an equivalent position to her old one, but I would tread lightly. Documentation is your friend and you need to discipline her for her attitude. But make sure you haven’t set a precedence of tolerance for poor attitudes of others.

    Good luck.

  • Brad

    What is the law regarding the employer paying for certain laid off employee’s insurance coverage but not others?

  • Karin

    I would assume that would depend on your state laws, but if you are showing favoritism towards a certain group (highly compensated, etc) you are begging for a lawsuit. Besides, didn’t Obama pretty much dictate you would pay 65% of insurance for laid off employees last month?

  • Marla

    We have a lday due to return back to work from Baby Bonding Time but the company is going through lay offs. Would it be safe to lay her off? We have been downsizing for the last two years. I read that one of the criterias is seniority but when does that seniority start? She was with the company for a few years and just recently was transferred over to the new department. Do we use the original date of hire or the date of the transfer?

  • Christina

    Marla,
    Seniority is not a criteria when considering layoffs, unless that is your usual company policy (and that policy would also determine when her seniority began).
    It is absolutely safe, though you may face a legal battle due to her grasping at straws, to lay off a person on FMLA, IF the decision would have been made had the person never taken the leave and if it was for a legitimate business reason. Given that you’ve been downsizing for two years and that you have made the decision based on legitimate business reasons, not at all including anything resulting from her FMLA, you will be fine to go ahead with your decision. You don’t need to wait until she returns, though many companies are kind enough to wait and reinstate her to her position (thus following through with their commitment to follow the FML Act) before she is eliminated from it.

  • Peggy

    We have an employee who is going out on FMLA due to a birth of a baby. She wants to come back in 3 weeks and work part time and then use her FMLA leave for the other part time. This could extend her FMLA leave to over 6 months depending on how many hours she works a day. Isn’t FMLA based on weeks and not hours or can she do this? Wouldn’t she require a doctors note to only work part time? Thanks for your help.

  • KW

    Peggy –

    I am pretty sure that for the first year of the baby’s life, the parent can use FMLA for “bonding”. She is allowed to break it out to “hours” without a doctors note.

  • Christina

    First of all, if you read the FMLA regulations carefully, it states that an employee can use FMLA in the smallest increment you record time in. So, if your time clock records and pays employees down to the minute, you have to give them FMLA in increments that small as well. 12 weeks was just one way of defining how long an employee can have. Depending on how your company measures time for payroll purposes, it could mean 480 hours, etc.

    Second, for employees having babies, FMLA covers them for a block period of time… so if they want to be out a solid 6 weeks or a solid 12 weeks, they are covered. If they want to come back to work and take a few hours here and there to go home and bond with the baby, that is called intermittent FMLA. Companies do not have to give employees intermittent FMLA for bonding purposes. Your company needs to make a policy and stick to it. If you choose to allow it, the employee needs to create a schedule and communicate it in advance – because you obviously still have a business to run. If you allow intermittent FMLA for bonding, the employee wouldn’t need a doctor’s note because there is nothing medical about it. She would only need her initial FMLA certification form and a note from the doctor saying she is fit to return to work.

  • Heather

    Our company just went through massive layoffs. We did not lay off anyone on leave. We have an employee returning from pregnancy disability leave next week. We do not require her employment anymore. Can we lay her off on her first day back from leave, or should we wait a couple of days after she returns to process her layoff?

    Thanks,
    Heather

  • Christina

    Heather,
    You only need to prove that had the employee not gone on leave, she still would have had her position eliminated. You may lay her off at any time, inlcluding while on leave. Most companies will want to seperate the leave from the termination decision by allowing the employee to come back for a day, making a big deal of the reinstatement to her position and that their obligation to that law is complete, then letting her know the position has been eliminated and it had nothing to do with the FMLA. It also allows her to clean out her desk and have some sort of resolution.

  • Heather

    So I know that employees are entitled to 12 weeks of FMLA a year, however, does that include Pregnancy Disability time? Say a woman is out for 8 weeks of pregnancy disability, once she is permitted to return to work by her doctor, can she then take up to an additional 12 weeks of FMLA for baby bonding?

  • Christina

    Heather,
    Disability and FMLA are totally separate things; one is a benefit and one is a right we obtained by law. Disability insurance pays employees while they are out, but does not give them the privilege of being out. FMLA gives them that right. The entire time a woman is out for her pregnancy, including appointments before the birth, can be counted toward her 12 week limit – even if you are using disability insurance. Disability insurance and the time that factors in are only to calculate the benefit pay she is owed – not for calculating how much time off she may have.

    So, if a woman is out 6 weeks for birth, then she may only have 6 weeks to bond for the remainder of the year, if your company’s policy allows FMLA to be used intermittently for bonding. She may only have 12 weeks for the year, no matter what she is using it for.

  • Heather

    What if it is a complicated pregnancy? What if her doctor puts her on bedrest 12 weeks before her due date?

    That 12 weeks she’s on bedrest exhausts her entire FMLA, she is left with no time for post pregnancy recuperation or baby bonding. In this situation would she have to request a personal leave, if the company permits personal leaves? Or would she have to be discharged for exhausted FMLA and encouraged to re-apply once she is able?

  • Christina

    Heather,
    It depends on your company policy. In my company you may request a 2 week personal leave of absence if you don’t qualify for FMLA. Once you run out of FMLA, you are out of options and we terminate your employment. If she was a good employee, we would rehire her if we still had an opening when she was ready to work again. We’ve had to do this a lot and sometimes it doesn’t work out in the employee’s best interest, but we aren’t a charity and can’t hold a job forever.

    If your company allows personal leaves in addition to FMLA, you should pursue that, but once the leave is out, you are out of options, unless you want to make the same exception for every other employee.

  • Heather

    Christina,

    Thank you, that answers my question exactly. I really appreciate your guidance. Our HR Director was just laid off 2 months ago and HR was kind of set in my lap, so I’m learning as I go.

    On another note, when it comes to intermittant FMLA leave. How are days counted.

    For example, if an employee is out for an entire day, that obviously counts as 1 day. However, suppose an employee has severe morning sickness and shows up to work 2 hours late, does this also count as 1 day? Say she was scheduled for 8 hours the day she was 2 hours late, does it count as 0.25 of a day? Or say she was only scheduled 4 hours for that day, does it count as 0.5 of a day?

    Is missed time based on 8 hour work days or number of hours they are actually scheduled for that day?

  • Christina

    Heather,

    Wow! That would be really frustrating.

    The FMLA regulation says that FMLA needs to be counted in the smallest increment of time you record for payroll. For example, our timeclocks go to the minute, so we have to calculate FMLA to the minute. Other companies round to the hour, so they count hours of FMLA and have to round one way or the other.

    Missed time would be based on the employee’s schedule. So if I work 8 hours each day and I only worked 2 . . . 6 hours would be FMLA. But if I had a variable schedule where every other day I worked different hours, then it would be based on the schedule. You don’t want to take FMLA from someone for time they would not have been at work on a normal day. Don’t get this confused with scheduled time off. If she scheduled off 4 hours ahead of time, you can still count it as FMLA if it seems logical. She can be sick at home just as well as anywhere else.

  • Heather

    Christina,

    I guess I would have to ask then how many hours does 12 weeks of FMLA translate into?

    In your example, 6 hours would be FMLA, but what percentage of her 12 weeks is that?

  • Christina

    12 weeks of FMLA = 480 hours.
    I keep a spreadsheet for employees on intermittent leave where I know tracking the hours will get tricky. Next to each day they use leave, I write the number of hours and have a running total so I can update them when they approach the 480 hours.
    It also helps track the year’s total, because after a year they can start all over again!

  • Heather

    Christina,

    Thank you so much.

    Would you mind if I had your email?

    It would be so helpful if I could ask you questions when I get stuck!

    You can email me at HR@ffpglobal.com if you don’t want to leave it here.

    I really do appreciate all the help you’ve provided.

  • http://www.virtualscopics.com Nancy

    I have an employee who is in a position where reliability is critical. He has been having some attendance issues which are affecting his job. He has been warned that this is becoming an issue (documented) with a 30 day correction plan. Part of the plan included no more absences for at least 30 days. Now, I just received notice that he is going out on a disability. Can I terminate him, or is he protected by FMLA?

    Thanks!

  • Don

    We are a small company of 15 employees, with a QC dept. consisting of only two. In the last 13 months one of the QC employees has been out on disability twice. Once for three week and currently on her second round of disability. This is a problem for our small company having only one QC inspector. Are we allowed to lay off or terminate the employee on disability so we can hire another person for this position?

  • Christina

    hmmm… since you have less than 50 employees, he is not entitled to FMLA. You are free to follow your attendance policy the same way you do with other employees until termination. Check your state laws, though.

  • http://hrmorning.com Angie

    I work for a small company. I am a 46 year old single woman. Two coworkers, who are also family members, decided that we needed a reduction in work force. I was the one picked to get terminated. They had the field manager tell me. He is not someone that I work for. The owner and his wife were out that week. I was let go. I called the wife, who is an officer of the company. She said she didnt know about it until after. The president was told it happened after also. I received no paperwork or paycheck. The wife said she was sorry. I was not the last hired. Three people were hired after I was, including the 23 year old daughter. Is this a wrongful termination? I only was told I would get a week’s severance. I asked the wife and she didnt know who came up with that number. Do I have any legal rights?

  • Christina

    No. Depending on the state in which you work, you have no legal rights unless you can prove you were terminated based on being in a protected class (even this depends on how small the company is). If you were wrongfully terminated, odds are the wife would have reinstated you. Many states are employment at will states, which means you can be terminated for any reason at any time as long as it does not violate law. Depending on your state, your check may come on your regular pay day or should have come within 24 hours. You can easily google that info and complain to the dept. of labor if you were not paid on time. No employee is entitled to a severance that I know of – it is a nicety that not all employers give. At my company, a week is pretty good and is only given out if it really is a RIF and not for cause. RIFs do not need to be last hired first gone . . . those decisions are made based on which positions the company can do without.

    I think you’d be wasting your money suing. Check out dol.gov if you’ve got some time. It lists all of the employment laws and you can probably search according to your state.

  • Debra Bradford

    I live in an at will state, was using intermittent FMLA leave to care for my disabled husband, was almost 54 years old, and there were close to 60 people hired after me, with less skills and experience, in my department, some I trained. The director of FMLA said I had excessive absences and had asked me to recertify which I was in the process of doing when I was suddenly laid off in a downsizing, a RIF. I had 4 1/2 years of employment and I heard from a witness that my name and the name of an employee who had been there only 6 months were on the table to select for termination and they kept her because of her race, an American Indian. What are my rights here? I have filed a wrongful termination case which is going to mediation.

  • Debra Bradford

    To add to the previous post, I was promoted from Associate Warehouseman to the title of Warehouseman after 3 years, everyone else who was laid off were Associate Warehousemen. I had never been written up, had received Met Expectations on all PPRs, except one was Exceeded Expectations, and had Met Expectations two weeks before dismissal. I had received numerous merit and cost of living raises, received a raise just 3 1/2 months before terminated. Someone filled my position for months after I was laid off until there was not enough work for 2 workers in that area. I could have been moved to another area and one of the new hires could have been let go. Some had been there less than 2 months.

  • Christina

    If your job was eliminated during a RIF, then none of your other information matters. A reduction in force means that your specific position was going to be eliminated, regardless of your FMLA, race, seniority, etc. The decision should have had nothing to do with you . . . our company makes decisions like those blindly, without even considering who the person in the position is. We just know which positions we no longer have a need for and those people, regardless of circumstance or performance, are terminated.

  • Debra Bradford

    Christina, my position was not eliminated, at least not for a while. Someone did that job for several months after I left. They wanted rid of me personally or they would have moved me to another department and laid off someone who had less time or experience. They are known
    for constantly moving folks around. I was only there in that position to cross train….at least that is what the memo said when they transferred me to that department…

  • Christina

    That is interesting. It sounds like they messed up – if someone filled the position afterward, then it wasn’t really a RIF, though I’m sure they’ll explain that they miscalculated the amount of work left to finish and the position really is being phased out. The key is to leave the position unfilled for at least 6 months. If they can do that, then they might be safe. It’ll be interesting to see how it turns out, given all of the different factors at play. You may get back pay for the months that someone was still doing your work, but given that it is an at-will state, it isn’t likely you’ll get your job back.

  • Dan

    Christina, great blog you have here.

    I have a poorly-performing employee and I documented several instances of unacceptable tardiness. He was going through many personal issues that I told him repeatedly to get help with. I suspended him indefinitely, and told him that I would be in contact with him when I’d deem it appropriate. I decided to terminate him. The day I contacted him to bring him in for an exit interview, his wife called me to let me know he’d check himself into a hospital. And so began his 6-week FMLA. Well, he’s now due back in a couple of days, and I have no interest in bringing him back on as my mind was made up before his medical leave. Your thoughts would be appreciated.

  • Christina

    I really think you people ought to get an employment attorney for FMLA issues – or at least go to a basic FMLA seminar.

    If his issues had nothing to do with his FMLA (the tardiness was for one thing and the hospitalization was for something completely different), you are ok to let him go. FMLA protects your job while you are out and holds it for you, but does not give you the right to do it poorly while you are in.

    If his tardiness was due to the condition that led to his FMLA and you knew or should have known about it, then you should consider that intermittent FMLA that you should have counted had you been on top of things and you would not be able to fire him.

  • Don

    Our company in California has a 3 day sick leave per year benefit. If a person is sick one day of the week but ends up with over 40 hours for the remaining days of the week are we required to still pay the sick day?

  • http://www.centricity-solutions.com Barbara

    An employee hired a year ago waived the group benefit coverage to stay on his COBRA for the subsidy. This employee is now out on FMLA and his spouse is due to have a baby next month. Now that the subsidy has ended and he is about to need family coverage he wants to come on the group benefits. Since this employee is on FMLA do we have to let him come on the plan mid-year? I don’t believe losing the subsidy is a QE but the spouse having a baby would be.

  • http://nellielymos@hotmail.com Nellie

    Can a big company like AT&T closed an office because of attendance problems where most of he employees are covered by FMLA?

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