FMLA: Can You Fire Someone While They’re on Leave?

Does the FMLA allow employers to terminate an employee who is on leave under the statute?

The answer to that question depends on the real reason for the termination.

In theory, it’s pretty simple: If the employee was let go for legitimate reasons unrelated to the leave – like previously existing job performance issues – then the termination does not violate the statute.

But employers might run into trouble if the timing of the termination raises eyebrows – even if there is a record indicating earlier performance issues.

That’s what happened in a case from Texas.

FMLA Lawsuit: How It All Started

James Hester began working for Bell-Textron in August of 1997. During his two-decade tenure there, he held positions including engineer, engineer technician, quality inspector and technical publications writer.

Hester has epilepsy and glaucoma, and he had at least five seizures between 2014 and 2017. In addition, his wife had cancer, and he cared for her and attended her medical appointments with her.

Hester had no serious issues during his tenure before he began reporting to a new supervisor in March of 2017. A bit more than a year later, the supervisor gave Hester his first bad performance review.

The bad review was followed by an October 2018 final warning that was related to a broken part.

Hester was not happy to get that warning; in fact, he protested it so strongly that he was escorted from the workplace premises.

Employee Begins FMLA Leave

After that happened, the supervisor told Hester to apply within 24 hours for an employee assistance program based on his medical issues.

At the suggestion of HR, Hester applied for and received short-term disability benefits. He also applied for and was granted FMLA leave.

While he was on leave, an HR employee gave him a call to say his employment was being terminated. The reason he was given: The bad performance review from six months earlier.

At the time of the termination, Hester still had more than five remaining weeks of FMLA leave for 2018 and another 12 weeks for 2019.

In a lawsuit he filed against Bell-Textron, Hester alleged discriminatory termination under the FMLA as well as interference with his right to reinstatement to his job following the conclusion of his leave period.

A federal district court granted Bell-Textron’s motion to dismiss. As to the termination claim, it ruled that Hester did not sufficiently allege that he was let go because he sought FMLA leave. It rejected the interference claim on the basis that Hester did not allege that he would have remained employed if he did not take FMLA leave.

Appeals Court Reverses FMLA Ruling for Employer

On appeal, the U.S. Court of Appeals for the Fifth Circuit reversed the district court’s decision to dismiss Hester’s suit.

As to the termination claim, it ruled that Hester sufficiently alleged a causal link between his termination and his request for FMLA leave.

The court pointed out the temporal proximity between the leave and the termination, noting that the termination took place while Hester was on FMLA leave. It also noted that Bell-Textron did not let Hester go at the time of his performance issues in June and October of 2018. Instead, it waited until two months after the final warning – and six months after the bad review – to let him go.

That timeline tended to show that the termination decision was related to Hester’s taking of FMLA leave, the court said – at least for purposes of surviving a dismissal motion.

The appeals court also reinstated Hester’s claim of unlawful interference under the FMLA. As to that claim, it decided that Hester sufficiently alleged that he was denied a benefit he was entitled to receive under the statute.

The lower court’s decision was reversed, and the case was remanded.

What This FMLA Case Means – and Doesn’t

This decision does not mean that employers can never fire employees while they are on FMLA leave. If the termination just happens to incidentally coincide with a termination decision that is motivated by other, legitimate reasons, there is no FMLA violation. But there are also circumstances – like those present in this case – that suggest the true motivation for the termination was in fact related to the taking of leave.

The court here essentially raised a very fair question: If you really terminated this employee for poor job performance, why did you wait until six months after a bad review and nearly two months after a final warning?

Bottom line: Be aware of the role that timing can play in establishing the viability of an FMLA lawsuit, and be prepared to provide a clearly legitimate and nondiscriminatory reason for terminating an employee who is on FMLA leave.

Hester v. Bell-Textron, Inc., 11 F.4th 301 (5th Cir. 2021).