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?
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?
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.