FMLA & Termination

mhogan

May we legally terminate someone who is on a FMLA who gets herself/himself involved in a dispute. This individual who is on FMLA drives to a confrontation and a police report is made out involving this employee. We are a unionized company.

Don D

The question DOL would raise would be, "Would this individual have been terminated if he/she was not out on FMLA?" The inquiry would probably center around a suspicion that maybe you terminated in retaliation for having taken FMLA. FMLA leave doesn't require that the employee be laid up at the house with no ability to go about some normal routine. The DOL would probably suggest that FMLA doesn't ristrict a person's right to go downtown and punch somebody out, although a civil law might punish it. I don't think I would terminate an individual who, on their own time, got involved in some sort of altercation and the police were involved, especially since it doesn't seem to have been resolved yet. The only exception, I think, would be non-compliance with a firm policy on not besmirching the reputation of the company and a conduct expectation stated by the company for officers, managers, people in the public eye whose behavior can easily affect the company's reputation in the community. This doesn't seem like a very safe way to proceed in my opinion.