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Allow FMLA leave before terminating employee

by on
in FMLA Guidelines,Human Resources

Are you thinking about terminating an employee for good business reasons, but know he needs to take FMLA leave? While you can legally discharge him, he could challenge the termination as interference with the right to FMLA.

He’ll probably lose, but not before you have spent precious time and money on the litigation.

But what if you allowed him to take FMLA leave and told him not to return? If the employee sued, chances are the court would quickly toss out the case.

Recent case: J. Brookes Leach worked for State Farm as an attorney. He informed his boss that his wife would need surgery and that he wanted to take FMLA leave.

Then Leach forwarded a chain email to other State Farm employees related to the “war on terror.” State Farm employees were not permitted to send chain emails and someone complained. When confronted, Leach became defensive. According to his supervisor, Leach got angry and told his boss to shove the dispute “up [his] ass.”

When Leach refused to discuss this apparent insubordination, his supervisor sent him home pending an investigation. Corporate counsel then recommended Leach’s termination, if he did not agree to take early retirement. But the attorney also suggested Leach be allowed to take FMLA leave first so his wife would still have health insurance while having surgery and recovering.

Leach then retired before his leave expired and took a job with another insurance company.

He sued anyway, alleging he had been denied reinstatement after FMLA leave.

The court tossed out the claim. It reasoned Leach was not entitled to reinstatement because he was scheduled for termination anyway. FMLA leave didn’t entitle him to extra protection he would not have received otherwise. (Leach v. State Farm, No. 10-13533, 11th Cir., 2011)

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