Employees assume they have an absolute right to go onif they have a serious health condition, need to care for a parent or child with a serious health condition or have other covered needs.
What’s more, many employees believe they can’t be fired if they are about to go onleave. They often try to use a leave request as a shield against potential termination for other reasons.
Thanks to a recent 11th Circuit Court of Appeals decision, it’s now clear that Florida employers can terminate employees who have FMLA leave coming—if they can prove they would have terminated the employee anyway.
Advice: To prove that, you must be able to produce solid documentation showing that you were indeed going to terminate the employee whether or not she asked for FMLA leave.
Recent case: Betsy Krutzig was a sales associate for Pulte Homes, selling houses in Sarasota. She hurt her ankle, but didn’t immediately need time off. Around the same time, she was placed on a 30-day performance improvement plan after she received two written warnings.
Krutzig called Pulte’s national HR office and explained she would soon need to have surgery on her ankle. HR sent her a package ofand contact information for the company’s short-term disability policy administrator.
Krutzig tried to take the form to her supervisor, but found the supervisor’s door closed. The supervisor never saw the form because Krutzig was terminated the next day after a customer complained about her.
She sued, alleging that the FMLA does not allow employers to fire employees who are about to take FMLA leave. It was a question that the 11th Circuit Court of Appeals had not previously addressed.
The 11th Circuit ruled that the FMLA doesn’t grant greater rights than other employees have to employees who are about to go out on FMLA leave. As long as the employer can show that it would have terminated the employee anyway, there is no FMLA violation.
In this case, the evidence was clear that the supervisor who made the termination decision knew nothing about the FMLA request. That was enough to prove that the company would have terminated Krutzig anyway. (Krutzig v. Pulte Homes, No. 09-12512, 11th Cir., 2010)
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