Employers often make termination decisions weeks before actually informing the affected employees. If they know there will be some lag time, smart employers document exactly when they made the decision to terminate.
Here’s one reason why: The employee may requestafter the decision has been made but before finding out she’s about to lose her job. Employers that can prove they made the firing decision earlier won’t lose an failure-to-reinstate lawsuit.
Recent case: Bukola Akinfaderin was in a car accident and took FMLA leave. While out, she realized her employer was advertising for her replacement. She sued, alleging interference with her right to reinstatement after FMLA leave.
But the employer showed the court it had made the termination decision before it could possibly have known that Akinfaderin would take FMLA leave. The court said the employer was in the right. FMLA leave didn’t have anything to do with a decision made before Akinfaderin’s accident. It dismissed her case. (Akinfaderin v. W.P. Carey, et al., No. 11-CIV-3184, SD NY, 2011)
Final note: Employers may even be able to dismiss employees during FMLA leave—if they can show they would have done so regardless of the leave. Employees don’t get extra protection from discipline or layoffs under the FMLA.
Seek your lawyer’s help if you want to carry out a termination during FMLA leave. You’ll need to have the law on your side and your documentation in order.