Firing Employees on Leave

It is not uncommon for employers to mistakenly believe that employees out on medical leave are completely protected from termination regardless of any disciplinary problems that may otherwise justify dismissal.

However, in some circumstances it is permissible for employers to terminate an employee who has requested leave or is already out on medical leave based on that individual’s poor job performance prior to taking Family and Medical Leave Act (FMLA) leave.

Although employees out on medical leave under the FMLA have a statutory right to be reinstated to the same or equivalent job upon returning from leave, this general protection provided to employees is not without exceptions, particularly if information is discovered by the employer during the leave period that justifies a decision to terminate the employee.

Employers should bear in mind that termination of a poor performing employee only after medical leave has been requested could be construed as retaliation or interference with an employee’s FMLA rights.

To avoid a discrimination claim in these instances, the employer needs to show that the employee would have been terminated anyway.

Significant company violations, fraud or acts of dishonesty discovered only after an employee begins medical leave may be used to support an argument that the employee would have been terminated regardless of the medical leave.

Timing is critical, and the reason for the termination should occur relatively close in time to the decision to terminate the employee. Sometimes it may be a better idea to terminate an employee who has requested leave or who has been out on medical leave based on that person’s poor job performance prior to the employee taking FMLA leave.

Additionally, an employer will not be in violation of the FMLA for lay-offs of employees out on medical leave if a reduction in workforce results in that employee’s entire department or division being eliminated, or the employer can show that all similarly situated employees are also being eliminated.

In the absence of those circumstances, the fact that an employee on medical leave was chosen to be included in the lay-offs could be perceived as retaliation.

Finally, employers are permitted to terminate employees unable to return to work after the expiration of their medical leave period, provided there are no other applicable forms of leave and/or legal protections available to the employee.

In addition, the employer needs to evaluate whether an employee requesting leave related to  his or her own serious health condition is not entitled to a reasonable accommodation under the Americans with Disabilities Act (ADA), allowing the employee to perform the essential functions of his or her job.

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The information on this website is intended as general legal information only and should not form the basis of legal advice of any kind. Individuals seeking specific legal advice should consult a lawyer.

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