Some employees assume that they will always get their jobs back after taking. Usually that’s true, but not always.
Take, for example, a case in which an employer needs to lay off workers. An employee’sstatus doesn’t necessarily protect her job in such a situation.
You can lay off someone who is out on FMLA leave as long as you don’t consider the leave as a factor when deciding which positions to cut.
Recent case: Deborah Harris worked for a school district as a summer-school coordinator. Following a checkup, her doctor recommended an immediate hysterectomy. She took two months off to recover from surgery and was ready to return to work in time for summer school. But she found her small department had been cut from the budget.
She sued, alleging interference with FMLA leave.
The 5th Circuit Court of Appeals said she had no case. It found that the school district had proved it had been ordered to cut budgets. It legitimately determined that Harris’ department was expendable, and its duties could be transferred elsewhere at lower cost. Harris offered no proof that her department was targeted for elimination because she took FMLA leave. (Harris v. Dallas Independent School District, No. 10-11067, 5th Cir., 2011)
Final note: Always document how you make employment decisions, including dates and details. That’s often all it takes to prove to a court that your decision had nothing to do with FMLA leave.