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Firing after FMLA: Potentially legal but usually unwise

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in Firing,FMLA Guidelines,Human Resources

The FMLA doesn’t forbid you to fire employees after they return from FMLA leave, or even while they’re on it. You’re simply prohibited from firing them because they took FMLA leave. But be aware that such timing is sure to raise questions with a terminated employee … and a jury.

To protect yourself, always have a carefully documented rationale for the termination that doesn’t reference the FMLA leave. Be able to point to firing reasons (discipline, RIF decisions, etc.) that were documented before the employee requested FMLA leave. Otherwise, it would be easy to presume that the discharge was punishment for taking leave.

The other option is to allow employees to return from FMLA leave and continue documenting their performance issues until you pull the trigger months later.

Recent case: Cheryl Smith took FMLA leave due to a case of pneumonia. It was the first time she’d missed work for illness. The day she returned, she was fired. Official reason: “Not properly calling in sick, inappropriate attitude and cutbacks in the department.”

Then the company tried to argue that it made the termination decision before she took leave. But the court didn’t buy it, especially since the company didn’t follow its own layoff rules and never issued any warnings. Plus, a supervisor later testified that the manager who fired Smith complained she was off with “a cold.” (Smith v. Aluminum Blanking, No. 05-72789, ED MI, 2007)

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