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After FMLA leave, watch timing of firing

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in FMLA Guidelines,Human Resources

Generally, employees who take FMLA leave are only entitled to their job back if they are able to return to work right after their 12 weeks of time off expires. Imme­­di­­ately terminating the employee without a good reason may backfire, because it could be seen as retaliation for taking leave.

Recent case: Vanessa was hired as a credentialing specialist, replacing a woman who took FMLA leave and wasn’t ready to return when the leave expired.

Two years later, Vanessa hurt her hand and took FMLA leave herself.

Her leave was set to expire Sept. 23; her doctors estimated that she could return to work by the end of that month. Her supervisors extended her leave—but at the same time decided to terminate her.

When Vanessa called to say she would return on Oct. 4, she learned her job had been filled and that her past disciplinary history barred her from transferring to another position.

She sued, alleging retaliation for taking FMLA leave.

The employer argued that it had legitimate reasons to discharge her when she wasn’t ready on September 23—namely that it needed someone in her position right away.

Vanessa argued that the timing of the decision to terminate her so close to the end of her FMLA leave was suspicious. She said the fact that the woman who replaced her was out on vacation from Sept. 23 until Oct. 4 showed the company had used the need for someone in the position immediately as an excuse to terminate her for taking FMLA leave.

The court said the case should go to trial. A jury will decide whether the employer had a legitimate reason or merely used its stated reason as an excuse to punish her. (Budhun v. Reading Hospital, No. 10-CV-06921, ED PA, 2015)

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