You can discharge during FMLA leave–under the right circumstances

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in FMLA Guidelines,Human Resources

Some employees think that just because they are on FMLA leave, 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 during FMLA leave. 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 maternity leave.

While out on FMLA leave, Erica was informed that she was being ­terminated because demand had slacked off.

She sued, alleging interference with her FMLA rights. 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 for poor performance or 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)

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