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OK to terminate, even after FMLA leave request

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in FMLA Guidelines,Human Resources

The FMLA protects employees from retaliation for requesting or taking FMLA leave and guarantees they can return to the same or an equivalent position. Other than that, however, the law doesn’t grant extraordinary job protection to those who take FMLA leave.

Put simply, if you were going to terminate an employee before you learned she wanted FMLA leave, you still can. Just be sure you can document when and why the termination decision was made.

Recent case: Luanne went to work for an advertising agency as a senior art director. At first she struggled and was placed on a performance improvement plan. When her performance improved, she was moved to another spot better suited to her specialized skills to enhance her chance at success.

About a year later, the agency decided it had to lay off several artists. It looked at performance and skills and determined that it could do without some specialties, including Luanne’s. Managers decided that Luanne would be one of the em­­p­loyees to be let go.

Meanwhile, Luanne had asked HR for FMLA leave so that she could care for her mother, who had cancer. When her manager found out, he explained to her that the decision to terminate her had already been made, but as a courtesy, he would extend her employment until her FMLA leave was up.

Luanne sued anyway, for interference with her right to reinstatement and retaliation for requesting FMLA leave.

Her lawsuit failed. The court said it was clear the termination decision had already been made before anyone knew Luanne needed leave. Since those who take FMLA leave don’t have greater protection from layoffs than those who don’t take leave, the court tossed out the case. (Mann v. Navicor Group, No. 11-4028, 6th Cir., 2012)

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