Tell Supervisors to Make FMLA a ‘Work-Free Zone’

Asking employees to perform even a minimal amount of work while they’re out on an FMLA absence could spark a lawsuit. And firing someone for refusing to pitch in while out on leave almost surely will.

Remind managers not to discipline or fire anyone on FMLA leave unless they’ve built a paper trail documenting poor performance.

A little-known section of the FMLA forbids your organization from "interfering with, restraining or denying the exercise" of employees’ FMLA leave time. (Labor Dept. Reg. 825.220(a)) As the following case shows, simply asking employees on FMLA leave for a minimal amount of work could spark a lawsuit.

Recent case: Sales rep Daniel Arban was disciplined for several misconduct incidents, including altering a sale to generate a higher commission. Arban’s boss recommended firing Arban but delayed the action because it was nearly Christmas. A few days later, Arban took FMLA leave to care for gastrointestinal problems.

While Arban was on leave, his boss asked for a list of his sales contacts. When the boss deemed Arban’s list unsatisfactory, he asked Arban to spend more time putting together a better list. When Arban refused, he was fired.

Arban sued, claiming the company interfered with his FMLA leave, then fired him when his on-leave work proved unsatisfactory. The company argued that Arban would have been fired anyway for poor performance before he took FMLA leave. The court rejected that argument and sided with Arban, saying the company fired him only after he refused to work while on leave, an action protected under the FMLA. (Arban v. West Publishing Corp., Nos. 01-2278/2370, 6th Cir., 2003)

Note: You can fire employees while they’re on FMLA leave if, and only if, you can show the firing would have occurred regardless of the leave. But that’s difficult to prove, especially when you don’t build a good paper trail on the employee’s poor performance. Terminations during FMLA leave smell too much like retaliation.

That’s why supervisors should diligently document employee performance and pull the trigger on a firing immediately after making the decision.