Walking the FMLA Termination Tightrope

After the enactment of federal and state statutes related to leaves of absence, employer discretion to terminate employees on leave eroded considerably. Employees are protected against discrimination for exercising their right to take temporary unpaid leave from employment under the federal Family and Medical Leave Act (FMLA).

Under FMLA, employers cannot use the taking of qualified leave, such as for the birth of a child or a serious health condition, as a negative factor in any employment actions, including promotion, discipline, layoff, or termination.

When FMLA Applies to Your Workplace

FMLA applies only to employers and employees who meet its specified qualifications; otherwise, a court will lack jurisdiction. For example, FMLA only applies to employers who have over 50 employees and to employees who have been employed for at least 12 months. If these prerequisites have not been met, then the leave (and any legal claim related to it) will not be covered under FMLA.

Complying with FMLA - Employers

Before an employer can safely terminate an employee for legitimate, non-discriminatory reasons unrelated to the FMLA leave, it is important to comply with the notice requirements under FMLA. For instance, a covered employer is required to provide notice to employees of their rights and obligations under FMLA by:

• Posting notices in a conspicuous place in work areas;
• Including a detailed notice and explanation of FMLA rights in employee handbooks;
• Specifically designating leave as an FMLA leave; and
• Informing employees that taking leave will count against their bank of available FMLA leave time.

An employer's failure to provide proper notice may excuse any failure on the part of an employee to provide proper notice to the employer of a request for FMLA leave.

Complying with FMLA - Employees

Under FMLA, employees must also comply with certain notice requirements. For example, an employee must provide 30-days' notice before taking an FMLA-covered leave, or as much notice as is "practicable." If an employee fails to provide timely notice, the leave may be unprotected by FMLA. If all the notice requirements are met, the employee is entitled to a maximum of 12 weeks of leave under FMLA.

Terminating Employees under FMLA

FMLA doesn't provide employees with any greater rights to reinstatement or other benefits and conditions of employment, including continued employment. An employer may terminate an employee regardless of FMLA leave status provided that there is a legitimate, nondiscriminatory reason for termination. Examples of such reasons from relevant caselaw include the following:

• If an employee would have been terminated regardless of FMLA leave because of poor performance, then the employee may be terminated before, during, or after FMLA leave. See Richmond v. Oneok (1997); and
• If prior to the leave, an employee fails to meet the goals of a corrective action program designed to improve performance, then the employee may be terminated upon return from FMLA leave. See Hubbard v. Blue Cross Blue Shield Assoc. (1998).

Other reasons that employers may terminate employees who are on FMLA leave include:

• Infractions or poor performance that come to the employer's attention during the leave
• Insubordination, fraud, or other prohibited conduct while out on leave

Also, an employee who is on FMLA leave may be considered for layoff during a reduction in the workforce so long as the employee is not chosen for layoff based on FMLA leave.

How Courts Evaluate FMLA Cases

While employers need to examine carefully the individual circumstances of each termination or layoff, courts generally uphold the right of employers to terminate employees for legitimate, nondiscriminatory reasons unrelated to the exercise of rights under FMLA.

In FMLA discrimination cases, which most courts have generally evaluated under the McDonnell Douglas-Burdine burden-shifting analysis applied in cases brought under Title VII of the Civil Rights Act of 1964, the burden of proof is ultimately on the employer. They must demonstrate that the employee would have been terminated or laid off despite having taken an FMLA-qualified leave. Due to this burden-shifting, it is important to keep thorough documentation of an employee's performance record so that the reasons for termination can be demonstrated to a court.

FMLA Questions? Have an Attorney Help You

If you have specific questions about FMLA and how it applies to you or your business, you should contact a qualified employment law attorney who specializes in FMLA matters. An experienced attorney can explain the law and how it applies to your specific situation. You can start down this path by finding an employment lawyer to answer your questions.