The Florida Nurse - May 2022

Page 10 The Florida Nurse May 2022
LERC News
Employees Can Be Terminated During FMLA Leave
John Berry, Director of Labor Relations
The Family Medical Leave
Act (FMLA) entitles eligible
employees of covered
employers to take job-protected
unpaid leave for specified family
and medical reasons. Employees
cannot be terminated for taking
medical leave, however, they
can be terminated while on
medical leave for other reasons
such as performance issues. The
following is a brief review of the
standards of the FMLA program:
John Berry
Save the Date
June 8, 2022 | 9am-12pm EDT
Conversations with a
Purpose: Nursing Workforce
Strategies and Solutions
The Florida Nurses Association, the Florida
Center for Nursing and the Florida Action
Coalition are joining together to hold a summit
called Conversations with a Purpose to bring
stake holders together to discuss SOLUTIONS to
all the challenges we have previously discussed in
our many meetings and sessions across the state.
Each session will be facilitated by a Conversation
Starter who will begin the discussion with a brief
presentation leading to a work session meant
to result in tangible solutions to share with the
healthcare community.
Qualified employers under FMLA are:
- A private sector employer with 50 or more
employees.
- A public agency, which includes a local, state, or
federal government agency, regardless of the
number of employees it employs.
- Public or private elementary or secondary school,
regardless of the number of employees it employs.
Eligible employees who are entitled to take FMLA are:
- Someone who works for a covered employer.
- Who works for that same employer for at least 12
months and has worked for at least 1,250 hours
of service for that same employer during the
12-month period immediately preceding the leave.
- Has worked at a location that has at least 50
employees in the private sector.
Eligible employees can use up to 12 work weeks of
leave in a 12-month period for one or more of the
following reasons:
- The birth of a child or placement of a child with
the employee for adoption or foster care.
- To care for a spouse, son, daughter, or a parent
who has a serious health condition.
- A serious health condition that makes the
employee unable to perform the essential
functions of their job.
- For any qualifying emergency arising out of the
fact that a spouse, son, daughter, or parent, is a
military member on covered active duty or call to
covered active duty status.
An eligible employee may also take up to 26 work
weeks of leave during a “single 12-month period” to
care for a servicemember with a serious injury or
illness. Under some circumstances, employees may
take FMLA on an intermittent or reduced schedule
(i.e., they can use blocks of time during the work day).
Employees must also comply with their employer’s
usual or customary requirements for requesting
leave and to provide enough information for their
employer to determine whether the FMLA may apply
to the leave request. When the leave is foreseeable,
employees must request the leave 30 days in advance
or as soon as possible under the circumstances.
When an employee is returning to work, they
must be restored to his or her original job or to an
equivalent job with equivalent pay benefits and other
terms and conditions of employment. An employee’s
use of FMLA cannot be counted against the employee
under the attendance policy of the employer.
Employers are also required to continue group health
insurance.
With all of the eligibility requirements for employees
and employers to meet under the FMLA, an employee
has always been protected from termination for
taking leave, as long as those requirements were met.
This, however, does not prevent them from being
terminated for other causes while on leave. A recent
decision handed down by the U.S. Court of Appeals
for the Seventh Circuit, ruled that while an employee
is protected from being terminated for taking FMLA,
they are not protected from being terminated due to
performance issues that were discovered while the
employee is on FMLA leave.
The case in question is Anderson v. National
Lending Corp, in which an employee sued their
employer for allegedly violating their rights under
the FMLA. The employee was terminated from their
position shortly after returning from medical leave.
While the employee was away on leave, an internal
audit system within the company discovered a
number of errors in the employee’s work, resulting
in a citation to the employer. An investigation was
conducted by the company’s human resources
department, resulting in the termination of the
employee for performance issues.
In the case ruling, the Court of Appeals Seventh
Circuit stated that “an employee is not entitled
to return to their former position if [they] would
have been fired regardless of whether [they] took
the leave or not.” The Seventh Circuit found that
the employer had evidence of the employee’s poor
performance, which warranted the company’s
decision for termination.
While this case does support the employer’s
ability to take appropriate disciplinary action,
regardless of being on FMLA leave, caution must
be made by employers to ensure that all employees
are being treated consistently and fairly with similar
issues.
References:
Family Medical Leave Act, US Department of Labor, Wage
and Hour Division. (Revised 2012).
Employees May Be Terminated for Performance Issues
Discovered During FMLA Leave. Ong, Fiona W.,
Shawe Rosenthal LLP., (March 31, 2022).