OK to fire if you discover mistakes while employee is out on FMLA leave

Sometimes, an employee with a blemished disciplinary history may think he will be protected from termination if he takes FMLA leave. After all, he has probably heard that the FMLA guarantees his right to return to his job after his leave ends.

But the FMLA right to return isn’t absolute. If an employer discovers workplace rule violations while the worker is on FMLA leave, it can terminate the employee either immediately or when he returns.

Recent case: Bronchee worked in advertising sales. He had been disciplined four times for violating the company’s rules for terminating advertising contracts. He was warned that the next time, he would be fired.

Bronchee suffered from several different disabilities that were debilitating from time to time. He went out on FMLA leave.

When that leave expired, he returned to work. That’s when he was told that, while he was out, the company had discovered several other contract termination violations attributable to Bronchee. He was immediately fired.


Bronchee sued, alleging interference with his right to FMLA leave and reinstatement.

The court dismissed his lawsuit after the employer explained why it had terminated him. It noted that workers aren’t entitled to forgiveness for their workplace mistakes made prior to taking FMLA leave. (Cathcart v. YP Advertising, ND TX, 2017)

Final note: It’s not uncommon to uncover mistakes while someone is on leave. You can discipline for those mistakes just as you would if the worker had never taken leave.