Human Resources News & Insights

Employee fired while on FMLA — was that legal?

Taking FMLA leave doesn’t give employees automatic immunity from discipline or termination. But your managers still need to use extreme caution when they make staffing decisions involving employees on leave.

In one recent case, an employee came back from leave to find that her job had been eliminated. The company had no other job to offer her, so she was let go.

The employee sued.

The company argued that she would have lost her job anyway. But the court didn’t buy it. Here’s why:

First, the employer couldn’t prove the woman’s job would’ve been eliminated if she never took leave. In fact, the manager didn’t decide to downsize until after the woman took leave, and he saw that the remaining employees handled the work.

Second, two positions were filled after the company decided to terminate the woman, but before she was told. According to the court, the employee was “arguably qualified” for both jobs, so the company should have made her an offer before hiring other people.

Questions for managers

Just because employees take FMLA leave doesn’t mean they can never be disciplined or terminated. But before managers make any staffing decisions regarding employees on leave, they should be able to answer the following questions:

  • Can we prove it would’ve happened anyway? — When a job is eliminated, companies need to prove the decision would have been made whether or not the employee took leave. Normally, that means the decision was in the works before the employee left. Often, the decision’s made once a manager sees that the work is still getting done without the employee. But that explanation will not hold up in court.
  • Can we show there’s no relation to the leave? — Employees on FMLA can still be fired for poor performance — as long as the problems have nothing to do with taking leave. For example, if an employee can’t meet a production quota because he missed work for intermittent FMLA, that’s not a legitimate reason to fire him.
  • Is there another position we can offer? — As the case above shows, courts look pretty closely to see if a company could have offered an equivalent job. Managers need to be careful here, too — the courts are pretty picky about what jobs are equivalent. For a job to be considered equivalent, it must be “virtually identical” to the former job in terms of pay, benefits and working conditions.

Cite: Stephens v. Neighborhood Service Organization

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  • banker girl

    Before FMLA, 17 yrs ago, I was on maternity leave when a merger took place at my bank. The HR person called to inform me that I would be terminated upon my medical release date because everyone on disability at the takeover point was losing their jobs. It didn’t matter that they kept an equal level supervisor who was on probation because of weekly absenteeism. I immediately called the local EEOC who told me that I had no recourse -“as long as all of the disabled were treated the same.” It did not sit well with me, but thinking I was going to continue in the field, I didn’t push it – my main focus was finding a job. After securing a job in another industry, I tried to pursue what I believed to be discrimination. Unfortunately, at that point, I was told by the local EEOC director that I was given incorrect information in my initial call and that I had missed the statute of limitations by several days. Timing is everything.