Employees are not immune from layoffs simply because they’ve taken in the past (or are currently out on leave).
Although the law prevents you from terminating employees because they’ve taken FMLA leave, you can legally lay off FMLA-takers if they would have been laid off anyway, regardless of their FMLA status.
One key point: When analyzing performance to determine which employees to lay off, keep FMLA-leave days out of the decision. In the case below, for example, a company wisely tallied layoff candidates’ performances by hours worked, not total performance. That kept FMLA days out of the equation.
Recent case: Robert Nelson, age 65, walked with a cane when he started working for Colonial Savings as a mortgage retention officer. His job entailed persuading customers to stick with the bank rather than refinance with another lender.
Because of his physical condition, Nelson needed two days off every six weeks for treatment. He used FMLA leave.
The trouble began during a mortgage slowdown. Over several months, a series of layoffs took place. Nelson lost his job during the third round of layoffs because the bank determined that, of the remaining employees, he had the fewest loans closed per hour worked.
He sued, alleging retaliation for taking FMLA leave. But the court dismissed his case after the bank showed statistics indicating that it had laid off mostly young, nondisabled employees who’d never taken FMLA leave. (Nelson v. Colonial Savings, No. 4:05-CV-551, ND TX, 2006)
Final note: Follow the bank’s lead and use selection criteria that doesn’t count FMLA leave time negatively. The company rated Nelson on his performance per hour worked, not total performance. That means his FMLA leave wasn’t figured into the decision. Had the bank ranked employees by total dollars worth of loans closed, he would have had a stronger FMLA case.