It’s a myth that being off onmeans an employee can’t be terminated. The employee can be—as long as the employer has good reasons for the termination.
You certainly can’t fire someone because she needed medical care or had to take care of a parent or child suffering from a serious health condition. But being onleave doesn’t give someone immunity from being fired for incompetence or other legitimate work-related reasons.
Advice: Make sure you can thoroughly document that you would have fired the employee regardless of her FMLA-leave status. As the following case shows, it also helps to be able to show that very few FMLA leave-takers lose their jobs.
Recent case: Virginia Salmon had surgery on her ankle and asked for FMLA leave to recover. She took leave from her job at Eastman Chemical, returned and then asked for another leave pending further surgery. Meanwhile, Salmon’s boss caught her asleep at her workstation. The company terminated her the same day.
It wasn’t Salmon’s first run-in with her supervisor. In fact, he had earlier placed her on a performance improvement plan because of poor behavior. She even wrote and apologized to her supervisors, admitting to drug use.
Yet Salmon sued, claiming the company shouldn’t have fired her while her FMLA-leave request was pending and she had a serious health condition.
But the court focused on her behavioral problems and said they were a legitimate reason for her discharge. Plus, in the last two years, over 500 Eastman Chemical employees had taken FMLA leave and returned to their jobs. Only seven had been terminated while out on FMLA leave. The court ruled that was evidence that the company didn’t treat FMLA usage as a negative factor, but welcomed FMLA leave. (Salmon v. Eastman Chemical, No. 2-07-CV-148, ED TX, 2008)