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The FMLA as a Shield to Termination?

By Carol C. Barnett

If the Family Medical Leave Act (FMLA) applies to your organization, you have likely had a few (or maybe many) compliance questions. Questions commonly arise when an employee seeks to use the FMLA as a shield in a situation that would normally result in employment termination, or where an employer wishes to terminate an employee while on FMLA leave. The FMLA prohibits interference with FMLA rights, contains an anti-retaliation provision, and provides practical and important support for employees who need it. But this law does not provide employees a shield from termination of employment for lawful reasons.  

Consider the following hypotheticals:

40 Rock Co. suffered financially after a recent downward trend in oil prices impacted its customer base.  Its finance department decides layoffs are necessary.  The list of layoff names (which is based on seniority within the company, per the employee handbook) includes an employee who is on FMLA leave.   

P&R Co.’s employee is on FMLA leave due to emergency surgery.  A co-worker who sits next to her gets up the courage to tell management that the employee on leave routinely bad-mouths P&R to customers, directing them to competitors.  A credible investigation concludes that these (untrue) comments were made, impacting the bottom line.   

R&B Co. has an employee whose spouse gave birth prematurely.  He is now on FMLA leave.   While he is out, a temp service employee is covering the employee’s responsibilities.  The temp reports that the employee’s screen saver, book-marked sites, and “favorites” contain pornography, in violation of the applicable computer use policy. 

In each of these hypotheticals, the employer may proceed with termination notwithstanding that the subject employee is on (or is about to take) FMLA leave, provided the termination decision is not implemented because of the exercise of FMLA leave.  An employee exercising FMLA rights has no greater right to reinstatement or to other benefits and conditions of employment than if the employee had been continuously employed during the FMLA leave period.  

Thus, if the employee on FMLA leave would have been fired under a company’s FMLA-neutral layoff plan or existing internal rules or customary practices, then an employer proceeding in good faith and without intent to discriminate or retaliate for use of FMLA may proceed to terminate employment.  Employers must, however, be mindful that no adverse employment action of any kind may be taken because of an employee’s exercise of FMLA leave.  Employers must also be aware of any applicable “mini-FMLA” state laws, which may impose additional requirements.