Some employees think that just because they are on, they can’t be fired. That’s just not true.
An employer that can show it would have terminated an employee for lack of work or another business reason can do so duringleave. However, it must be able to offer clear, documented proof showing the move wasn’t related to the leave.
You can do that with economic data showing the employee was slated for a reduction in force. You can also show that the employee was terminated because of wrongdoing.
Recent case: Erica worked for Northwest Home Care, a health-services provider, as a manager. Subordinates began complaining about Erica’s professionalism and she was moved to another position shortly before she began a scheduled.
While out on FMLA leave, Erica was informed that she was being terminated because demand had slacked off.
She sued, alleging interference with her. She then asked the court to enter judgment on her behalf, reasoning that her former employer clearly violated the law by terminating her during leave.
The court said things weren’t that clear-cut. Northwest Home Care had proof that it cut Erica either foror for lack of work.
A jury will have to decide whether that was the real reason, or that Erica was terminated because she took FMLA leave. (Selshtut v. Northwest Home Care, No. 11-C-1312, ND IL, 2012)
- How to Fire an Employee the Legal Way: 6 Termination Guidelines
- Beware personal liability for COBRA, FMLA, state bias law
- Check your leave policies! EEOC looks at return-to-work issues
- Don't let abusive staff use disability as excuse; you can fire for behavior
- You can automatically apply FMLA/CFRA leave with notice