Can I fire an employee on FMLA for other reasons?

wire manufacturer · January 2002

[font size="1" color="#FF0000"]LAST EDITED ON 01-23-02 AT 04:15PM (CST)[/font][p]I have an employee who has been on FMLA. We have had quality problems with his work. As long as I treat him the same as I do other employees with the same quality problems (warnings, suspension, etc.) can I fire him?

John Vering MO · January 2002

As a general rule, being on FMLA does not immunize a person from being fired if that person would have been fired had they not been on FMLA leave. However, any termination of an employee while on FMLA leave will be closely scrutinized should there be a lawsuit or claim filed by that employee of retaliation for exercising rights under FMLA. Therefore, proceed at your peril. This response is a general statement of legal principles and should not be construed as legal advice applicable to any particular factual situation.
John Vering
Missouri co-editor

Gar · January 2002

As John Vering suggests, procede with caution. We had a siuation some 4 years ago involving an employee who stole some significant company property (a laptop computer and a scanner). He did it several weeks prior to going on FMLA leave. The thief's identity came to light via an investigation by our security department while he was on FMLA leave. The investigation was well documented. We fired the employee while he was on leave. He complained to the DOL (retaliation) but we won. Again, make sure your ducks are in a row before you take that step.

Robert Kaiser MO · January 2002

I agree with John. There are a number of cases out there upholding an employer's right to terminate an employee for reasons unrelated to FMLA, even while the employee is on leave. if you terminate others in the same circumstances, you can generally terminate this person.

Theresa Gegen TX · January 2002

I suggest, sinc you can expect this employee to believe that he was fired because of FMLA and sue, that you get with an employment lawyer to review the evidence supporting your decision to terminate. I have dealt with many employers who thought their reasons were strong, but the quality of hard evidence was very poor when closely reviewed by an attorney.

Good Luck

Rockie · January 2002

The first question an attorney will want to know is - why did you wait until the employee went on FMLA to address this issue since obviously, this problem existed prior to the employee going out on FMLA?

You can terminate an employee while on FMLA, but it is scrutinized very carefully, especially when you are dealing with disciplinary issues that existed prior to the FMLA.

Terminations while on FMLA are usually most successful in the case of layoffs where you can show that the layoff would have occurred whether or not the employee was on board.

Good luck!

Can I fire an employee on FMLA for other reasons?

Comments