Some employees mistakenly believe that if they take, they can’t be terminated. That’s not true. The even allow employers to fire employees on leave before they return—if they can show the termination was unrelated to leave.
Recent case: John Roll worked in the auto industry, which was hard hit by the Great Recession. While Roll was out on approved FMLA leave for a nonwork-related injury, his employer was conducting a reduction in force that affected 60% of plant employees. Roll, like the other affected employees, got advance notification that he would lose his job.
The others were cut while Roll was still on leave, but Roll was not. HR had generously allowed him to stay on the payroll, collecting his health benefits and a partial paycheck until his doctor cleared him for work. Then he was terminated.
Roll sued, alleging interference with his.
The court said he was wrong and that the company had been more generous than it needed to be. It could have terminated him the same day it dismissed the others and still not have violated the FMLA. (Roll v. Bowling Green Metalforming, No. 10-6185, 6th Cir., 2012)
Final note: Should you terminate the employee while he’s still on leave? That’s an internal policy decision you should discuss with your attorneys.