OK to terminate after FMLA as long as you document business-related rationale

Employers sometimes think it’s too dangerous to fire a worker who has recently returned from FMLA leave. But don’t let fear of a lawsuit keep you from making a reasonable and necessary business decision.

Just make sure the employee’s use of FMLA leave didn’t motivate the discharge. As long as you document legitimate, business-related reasons for the termination, courts won’t interfere.

Recent case: Aubree worked as a pharmaceutical representative for Novo Nordisk. She has rheumatoid arthritis and took FMLA leave during a flare-up. Her supervisors knew about her condition.

Shortly after her return, Novo Nordisk began investigating claims that Aubree and several other em­­ployees had broken company rules by falsely recording contacts with doctors in their logs. Novo Nordisk fired Aubree and six other representatives for the same reason on the same day.

Aubree sued, alleging she had been fired for taking FMLA leave. She cited her recent leave and several comments over the years that she took as criticism for taking time off for her arthritis flare-ups as the underlying reasons.

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But the court dismissed her lawsuit. It reasoned that Novo Nor­­disk had a legitimate reason for the dis­­charge: Aubree broke the rules about recording contacts. Plus, others were fired for the same thing at the same time. (Ebersole v. Novo Nordisk, et al., No. 13-2160, 8th Cir., 2014)

Final note: Employees who take FMLA leave can still be disciplined as long as the discipline isn’t related to their leave.