The Essential Guide to Family & Medical Leave

230 | the essential guide to family and medical leave
Termination for Cause
As explained in Chapter 9, you may fire an employee who is on FMLA leave
only, for reasons entirely unrelated to the employee’s use of the FMLA. If
you have sufficient, independent grounds to terminate employment, you do
not have to reinstate the employee. In this situation, as when the employee’s
job is eliminated in a layoff or restructuring, the employee would have lost
the job whether or not he or she took FMLA leave. (For more on firing or
disciplining an employee who is on leave, see Chapter 9.)
Caution
Don’t rely on the right to fire at will. Most employees work at will, which
means that they can be fired at any time, for any reason that isn’t illegal.
But you should not exercise this right when firing an employee on FMLA
leave. To successfully defend against an employee lawsuit (an all-toocommon
scenario when an employee is fired while on leave), you’ll have
to prove that your reasons for firing the employee were not related to the
employee’s use of the FMLA. As a practical matter, this means you must
have a different reason for firing the employee, one that is compelling
enough to convince a jury that your actions were justified.
You may also discipline an employee who takes FMLA leave—again,
only if it is for independent reasons. If your discipline will make the
employee’s position less than equivalent (for example, the employee will be
demoted, will have more onerous reporting requirements, or will lose some
independence and job perks), that’s okay—even though it would normally
violate reinstatement requirements.
See an Expert
Get some legal advice before firing or disciplining an employee on leave.
As explained in Chapter 9, even though you believe you have entirely
independent and sound reasons for firing an employee on FMLA leave,
chances are very good that the employee will see things differently. This is
the most likely source of an FMLA lawsuit, so it’s a good idea to talk to a
lawyer before you take any action.