Can You Fire an Employee on FMLA Leave? 5 Times Courts Said Yes
Terminating an employee during FMLA leave is a legal minefield – but sometimes it’s lawful. A ruling from a federal appeals court clarifies when you can move forward – and when it’s likely to blow up in your face.
What if an employee had already been under a performance improvement plan – or you’d been preparing a department reorg – well before they requested leave? Is it legally safe to move forward while they’re on leave?
This is where employers most often misstep.
Understanding the High Stakes of FMLA Termination
The core risk is an FMLA interference or retaliation claim. Even if the leave wasn’t a factor in the decision, the appearance of retaliation may be enough to land your organization in court.
Employee attorneys are quick to connect the dots: “They were on FMLA leave; then they got fired. That’s interference and retaliation.”
Documentation and timing are critical. Terminating an employee during or immediately after FMLA leave, even for unrelated reasons, creates an opening for legal claims that are expensive to fight and damaging to morale.
Documentation Strategies for HR Compliance
Documentation is the compliance MVP here. Courts regularly point to inconsistent leave practices and sloppy records when employers lose otherwise defensible FMLA cases. Here’s what you need to know:
How to Document FMLA-Related Termination Decisions
Proper documentation is your best defense when handling FMLA-related termination decisions.
- Create detailed, dated, and well-organized records that clearly establish timelines and facts.
- Use consistent formatting in all documentation.
- Centralize documents to ensure easy access and audit readiness.
- Keep everything objective and factual – avoid vague language or assumptions.
Documentation isn’t just paperwork; it’s your legal armor against interference and retaliation claims that can derail your organization.
What to Include in FMLA Termination Documentation
Include concrete evidence that supports the termination decision, focusing on factors that existed before the employee’s FMLA leave. Courts also look at whether employers met FMLA notice requirements, since notice failures can undermine otherwise defensible termination decisions. This means:
- Thorough performance reviews highlighting ongoing issues
- Written warnings for policy violations
- Attendance logs documenting policy violations unrelated to FMLA leave
- Internal emails related to performance or disciplinary actions, and
- Any reduction-in-force (RIF) plans or organizational restructuring notes.
Every item should be clearly dated and linked to the decision timeline. Skimping here hands plaintiff attorneys the keys to the courthouse – don’t give them that advantage.
Timing: The Legal Make-or-Break Factor
Timing often determines whether a case gets dismissed or goes to trial. Courts scrutinize whether termination decisions were finalized before leave started or delayed long enough after return to avoid retaliation claims. Terminating an employee during or immediately after FMLA leave is a red flag.
When you contact an employee on leave matters, because inappropriate outreach can create interference risk even when performance issues are legitimate.
If your timing looks suspiciously close to the leave, don’t expect judges to buy coincidence. Finalize decisions before leave starts or wait long enough after the employee returns. Anything else invites legal trouble.
When Courts Tend to Support Employers
Courts tend to side with employers who come armed with solid evidence that termination wasn’t about FMLA, especially when:
- The employee engaged in serious misconduct such as harassment, fraud, or dishonesty.
- There were repeated violations of company policy before the leave.
- Performance issues were already being formally addressed.
- A reduction in force had been planned and documented prior to the leave.
When It’s Legally Safer to Terminate During FMLA Leave
A federal appeals court offered helpful clarity on a situation that leaves many HR teams uneasy: whether you can legally terminate an employee who is out on FMLA leave.
The Tenth Circuit reviewed five different cases where employers successfully defended against FMLA interference claims. In each instance, the court found undisputed evidence that the employee would have been terminated even if they had never taken leave.
These cases reveal a consistent pattern courts rely on when evaluating FMLA termination decisions.
5 Factors That Protect Employers in FMLA Termination Cases
In all five cases, the court identified specific, documented reasons that justified termination regardless of FMLA status. Here’s what those employers had going for them:
- The employee failed to comply with a direct and legitimate order from supervisors.
- There was overwhelming evidence of performance issues that predated the leave.
- The employee had a documented pattern of tardiness and violated the absence policy on the date of termination.
- Before taking leave, the employee had documented performance issues, including tardiness, unexplained desk absences, and incomplete records.
- The company had already made a documented reduction-in-force decision prior to the employee taking leave.
Because these factors clearly supported legitimate, non-retaliatory reasons for termination, the courts dismissed the claims at the summary judgment stage.
Case Study: Janczak v. Tulsa Winch Inc. and the Cost of Weak Documentation
These examples were highlighted in the appeals court’s analysis of Janczak v. Tulsa Winch Inc., a case where the employer did not have the same level of documentation. The court allowed that interference claim to proceed, reinforcing just how critical timing and written evidence are when FMLA leave intersects with a termination decision.
This case illustrates how the timing of a termination decision – even one that may be justified – can create significant legal risk if it overlaps with FMLA leave. The details of the employer’s process and documentation made all the difference.
Background of the Janczak Case
Paul Janczak, general manager of Canadian operations for Tulsa Winch Inc. (TWI), took FMLA leave to recover from an auto accident. The day he returned, the company terminated him, saying his position had been eliminated.
Janczak filed a lawsuit alleging FMLA interference and retaliation.
TWI argued that it had been evaluating a management reorganization before Janczak went out on leave and had been considering eliminating his role.
Where the Employer’s Defense Fell Short: Was It FMLA Interference?
The court acknowledged that TWI had started reviewing its org structure before the leave. But crucially, no final decision had been made before Janczak went on FMLA leave.
That uncertainty left the door open for the court to conclude that the leave could have influenced the final termination decision. Because of that, the FMLA interference claim was allowed to move forward to trial – exposing the company to a potentially expensive legal process or settlement.
Court’s Criteria for Dismissal
To get the case dismissed without trial, TWI needed to prove that the termination would have occurred regardless of the FMLA leave.
The lack of a clear, finalized decision before the leave undermined that argument.
What HR Can Learn from This Case
Do not evaluate or finalize termination decisions while an employee is on FMLA leave. If a decision is still in progress when the leave begins, press pause. Alternatively, wait long enough after the employee returns that the termination cannot reasonably be seen as a response to the leave.
What About the FMLA Retaliation Claim?
Though the FMLA interference claim moved forward, Janczak’s FMLA retaliation claim did not.
The reason: Retaliation typically involves an adverse employment action after the employee has been restored to their position. Because Janczak was never reinstated before being terminated, the court dismissed the FMLA retaliation claim.
Frequently Asked Questions About FMLA Termination
Can you fire an employee while they are on FMLA leave?
Yes, an employee can be terminated while on FMLA leave if the decision is unrelated to the leave itself. As noted above, courts have allowed terminations tied to misconduct, poor performance, or business reasons that would have applied even if the employee had not taken leave.
What is the difference between FMLA retaliation and FMLA interference?
FMLA interference involves denying or discouraging an employee’s right to take protected leave. Retaliation involves taking adverse action because an employee used FMLA leave. Employers must show the termination decision was based on legitimate reasons unrelated to the leave.
How long after FMLA leave can an employee be terminated?
There is no required waiting period after FMLA leave ends. However, terminations that occur immediately before, during, or shortly after leave receive closer scrutiny. Employers must be able to show clear documentation supporting the timing and decision.
What documentation should employers have before firing an employee on FMLA leave?
Employers should have consistent performance records, prior discipline, attendance documentation unrelated to FMLA leave, and evidence that policies were applied consistently. Courts look closely at whether documentation existed before the leave request.
Does FMLA protect employees from being fired for poor performance?
No. FMLA does not shield employees from termination for legitimate performance issues or misconduct. The key factor is whether the employer can prove the decision was based on documented performance problems rather than the employee’s use of leave.
Final Takeaway for HR
Terminating an employee during or after FMLA leave isn’t automatically unlawful, but the legal risk skyrockets without clear documentation showing the decision was finalized before the employee’s leave.
Timing, process integrity, and written records will make or break your defense. When in doubt, pause and consult legal counsel before pulling the trigger.
Delaying a termination decision until after FMLA leave shows savvy leadership, not hesitation. It gives you time to ensure your documentation and timing are solid enough to withstand legal scrutiny and protect the business from unnecessary exposure.
Janczak v. Tulsa Winch Inc., 621 Fed.Appx. 528 (10th Cir. 2015).
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