RIF after FMLA leave? Possible, but proceed with caution

If you terminate an employee soon after he or she has returned from FMLA leave, you open yourself to charges of retaliation.

But that doesn’t mean the FMLA guarantees permanent job security. The law doesn’t forbid you to fire people after they return from FMLA leave—or even while they’re on it—but it does forbid you to terminate them because they took the leave.

That’s why it’s vital to be able to show a legitimate business reason for terminating that employee rather than someone else. When making reduction-in-force (RIF) decisions, focus on:

  • The employee’s pre-leave disciplinary and work records.
  • Your established decision-making process, including how you rank employees to determine your RIF list.

Then double-check that your evaluation process doesn’t count FMLA leave either against attendance criteria or in overall performance critiques.

Recent case: Karen Bacon worked for EDS in the voice-network services area. Bacon asked to work from home and was allowed to telecommute.


Just one month later, she was injured in a car accident and took five days of FMLA leave. The next month, she suffered a heart attack and received four additional days of leave.

At the same time, EDS was planning a RIF. Bacon’s manager was instructed to rank the 17 members of his group according to their value. He ranked Bacon second on the dismissal list.

Meanwhile, Bacon’s bad luck continued; she injured her ankle and hand. During her convalescence, EDS dismissed the first employee on the RIF list. Then Bacon returned in time for the second RIF. She sued, alleging her low ranking and discharge were due to taking FMLA leave.

But EDS successfully showed that Bacon’s place on the RIF list was due to her past performance. She had been counseled about her shortcomings before she took leave. The Fifth Circuit said that the “mere fact that Bacon’s FMLA leave coincided with a reduction in force does not prove … a case of retaliation.” (Bacon v. EDS, No. 06-10885, 5th Cir., 2007)