Feel free to terminate if you find wrongdoing while employee is out on FMLA leave

Employees out on FMLA leave don’t enjoy more job protection than employees who don’t take leave. As long as an employer doesn’t terminate because an employee took FMLA leave, it’s perfectly lawful to fire someone during leave.

Just be sure you can prove you would have fired even if FMLA wasn’t involved at all.

Recent case: Tracy worked as a training director for an emergency service provider in State College. She also set up her own training services as a side business. When her employer discovered this, it required her to sign a noncompete agreement and give up the side business.

At work, several CPR dummies were damaged and Tracy’s employer filed an insurance claim. Tracy told the insurer that she would see to the dummies’ destruction.

Then Tracy was injured in a biking accident while on vacation and was approved for six weeks of FMLA leave. During her leave, a co-worker told management that Tracy had not destroyed the dummies and instead had allegedly appropriated them to use in her side business.


The employer then sent Tracy a letter asking for an explanation. She didn’t respond by the deadline and was terminated, with a few days left of FMLA leave.

She sued, alleging interference with her protected FMLA leave.

The court tossed out her lawsuit, reasoning that the employer had fired her for wrongdoing, not for taking FMLA leave. (Reagan v. Centre Lifelink, MD PA, 2017)