Some employees believe that applying for or takinginsulates them from legitimate punishment. They think, “You can’t discipline me because I just took leave; that would be retaliation.”
That just isn’t true.
Employers are free to discipline all employees for legitimate reasons, even if they are on FMLA leave, have applied for leave or just returned. The key is that the employer must show it had a real reason, and that others who didn’t request or take FMLA leave weren’t treated more favorably.
Recent case: Russell Warren took FMLA leave and then was fired. He sued, alleging the termination was in retaliation for exercising his rights under the FMLA.
But his former employer said it had really fired Warren for theft. While Warren was on FMLA leave, it discovered he had misappropriated expensive work supplies. It said he also falsified time records.
The court said those were legitimate termination reasons unrelated to FMLA leave. (Warren v. Texas Disposal System, et al., No. 10-50671, 5th Cir., 2011)
Final note: Sometimes while an employee is home on FMLA leave, a temporary replacement discovers work problems that are serious enough to warrant discharge. As long as you are sure you would discharge any employee who had similar problems, you can fire the employee who is out on FMLA leave.
Remember, the FMLA doesn’t give employees greater rights than those of other employees just because they take FMLA leave.