Yes, we know. It seems pretty obvious you can’t legally fire an employee because she took
Recently, the 6th Circuit Court of Appeals, which covers Ohio employers, had to rule on the question. It seems that one employer didn’t get the memo and spent thousands on an appeal, hoping to get a definitive ruling that employees are entitled to leave, but can be fired for using that leave. Guess what happened.
Recent case: Martha Bryant has type 2 diabetes, high blood pressure and a heart condition. She worked for Dollar General and asked for leave shortly after being assigned to an important project that was running behind schedule. The retailer granted her FMLA leave for several days—and then fired her.
Bryant sued, alleging retaliation for taking FMLA leave. Bryant said a manager told her she was fired because her health prevented her from doing the job. A jury awarded her $74,000. Then the judge doubled the award.
Dollar General appealed, arguing that nothing in the FMLA actually forbids an employer from firing an employee in retaliation for taking leave as long as she got the leave she was entitled to first.
It argued that the FMLA’s specific language says employees are protected from retaliation for opposing practices made illegal by the law, but not for actually taking leave.
The 6th Circuit Court of Appeals rejected that idea, noting that the issue had never been raised before, probably because it was blatantly wrong and illogical.
After all, it reasoned, if employers could fire anyone who took FMLA leave, that would essentially eviscerate the law and deprive employees of any practical way to use their rights. (Bryant v. Dollar General, No. 07-5006, 6th Cir., 2008)
- How to Fire an Employee the Legal Way: 6 Termination Guidelines
- Consider ADA, discrimination, validity issues when using personality tests
- For new mom with very ill baby, what are our FMLA and unemployment obligations?
- You (not the employee) determine FMLA leave
- Give staff at least 15 days to obtain FMLA certification