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Despite what might you have been told, you can discharge an employee while on leave for cause under the Family and Medical Leave Act.
Of course, you must have a valid justification with documentation. Further, you must be able to demonstrate you would have terminated another employee for similar reasons whether or not the person was gone on leave.
Appearances matter. Otherwise, you risk a lawsuit.
A lawyer would advise your employee to sue you for reasons such as interfering with an FMLA, retaliation or for disability discrimination.
Again, FMLA or other leave-related laws can’t prohibit you from terminating employees for other good justifications. You can do it for almost any reason providing it’s not for an illegal reason.
Protection for workers under FMLA
The law protects employees for these considerations:
- Whether you as an employer is considered covered by the law
- Whether your employee has worked for you for at least a year
- Whether your employee has worked 1,250 hours or more during the year before taking the leave
- Whether your employee has worked at your location with 50 or more workers within 75 miles
Justifications for terminations under FMLA
Here are some typical justifications for terminating employees:
Budget reductions – If you find it necessary over financial issues to make across-the-board budget cuts either because of an economic downturn or because you need to make a profit.
Discovery of errors or poor performance – If you are under the misconception that your employee was doing a good job, but discover otherwise during a leave, you can terminate the person. There have been many cases in which such discoveries are made that justify firing employees.
Sometimes replacement workers for the employees on leave find errors, incomplete assignments or other irregularities such as embezzlement. It’s not uncommon for employers to find such issues until the employee is away.
Restructuring in your company – If you find it necessary to reorganize your company operations or eliminate jobs, you aren’t required to keep employees that would ordinarily be discharged.
Employee requiring discipline – If you were in the process of documenting bad behavior or performance just as an employee requests leave, but the person suddenly requests a leave, the person isn’t immune from termination with just cause.
Note: You must be able to show proof that you’ve terminated other employees for the same reasons.
Weak performance – You can terminate a person on leave for inadequate productivity. But be sure to allow for any time missed while on FMLA leave, ADA accommodations or military leave.
Note: Making an allowance means you should show fairness by adjusting goals, quotas or sales targets to offset the effect of the lost-time.
From the Coach’s Corner, related leave information:
HR Tips to Manage Suspicious FMLA Leave – One most-challenging issues facing employers is the fishy use of leave by employees under protection of the Family and Medical Leave Act. The FMLA has been costly to businesses. It has led to productivity issues and disruptions in scheduling and expenses. Here’s what you can do.
Avoid EEOC Legal Hassles over Unpaid Leave Requirements – You might want to review your current human resource policies. The Equal Employment Opportunity Commission (EEOC) has continued to push employers on unpaid leave under the Americans with Disabilities Act (ADA).
HR: Effectively Manage ADA Issues in Your Facilities – Disabled persons have had both valid and invalid complaints about the workplace. Such complaints about a lack of inclusion concern your facilities and human resources program. Here are strategies to consider implementing.
Vital Strategies to Avoid EEOC Discrimination Suits – Federal employment discrimination complaints are sky-high — a sad commentary for businesses and public agencies that are large enough for a human resources department. Here’s what you need to know.
Vital Strategies to Avoid EEOC Discrimination Suits – Federal employment discrimination complaints are sky-high — a sad commentary for businesses and public agencies that are large enough for a human resources department. Here’s what you need to know.
Yes, our employee is sick. It’s called FMLA-abuse syndrome.
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