Employees returning from
However, an employer can terminate an employee while she’s out on leave if it can show it would have done so anyway even if the employee hadn’t taken FMLA leave. Thus, employees on FMLA leave aren’t immune from a legitimate reduction in force.
But be careful: You can’t simply have the employee show up for work on the day her leave expires, terminate her and think that is the end of the matter.
You must consider whether you have any other open positions available that are substantially equivalent to the one you eliminated.
Recent case: Barbara Burke needed surgery on her Achilles tendon and took 12 weeks of FMLA leave. While she was recuperating, the company concluded it needed to cut some positions due to the economic downturn. It determined that one of those positions was the one Burke held. Meanwhile, it also created several similar positions and began advertising to fill them.
Burke returned to work after her leave expired and was terminated about three minutes into the day. She sued, alleging FMLA interference.
A court ruled in Burke’s favor. During the trial, the employer argued it had met its reinstatement requirement by waiting until Burke had clocked in to fire her. The court disagreed, concluding that the reinstatement had to be “meaningful.”
Then the employer claimed it didn’t have to consider placing Burke in any open positions. Again the court disagreed, saying it had to consider her for open jobs that were substantially equivalent. In this case, two of the open spots listed almost identical skills, duties and educational requirements. (Burke v. Laboratory Corp., No. 8:08-CV-2072, MD FL, 2009)
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