Is it Ever OK to Fire an Employee Who is on FMLA?

While an employer is not allowed to fire an employee simply for exercising their right to take family and medical leave under the Family Medical Leave Act (FMLA), there are situations where the employment of an employee that is out on FMLA leave may be ended. Below are five situations where the U.S. Court of Appeals for the Tenth Circuit recently threw out lawsuits because it found that the employee would have been terminated regardless of whether the employee was on FMLA or whether the employee was actively at work. That is the key in defending a claim – would the employee have been terminated regardless of their leave status.

• employee failed to comply with a direct and legitimate order from supervisors
• there was overwhelming evidence of performance issues that predated the leave
• employee had repeatedly been tardy and was noncompliant with absence policy on the date terminated
• employee, prior to leave, had been tardy, absent from desk, failed to timely pay invoices or update list of services received from vendors, and
• evidence was unequivocal that the reduction-in-force decision had already been made before the employee took FMLA leave.

Stay tuned this week for more posts on leave management. Want to learn more? Start a conversation with us.