VanAntwerp Attorneys, LLP
Phone: 606-618-0698

Can you fire someone on FMLA leave?

If you're an employer looking to avoid lawsuits over FMLA leave, it can be tempting to believe that employees who are out on leave are "untouchable," and that altering their employment status for any reason could land you in hot water. But in fact, employees who take FMLA leave don't have any more protection against termination than other employees who didn't take FMLA leave. In other words, you as an employer are still allowed to terminate employees who take FMLA leave, as long as that termination has nothing to do with the fact of the employee taking leave in the first place.

50 employees, 12 months

The first thing you as an employer should consider is whether FMLA even applies to your business, or to the employee who wants to take leave. Only employers who have more than 50 employees are subject to FMLA laws. And only employees who have been on the job for more than 12 months qualify to take advantage of the leave. If your business is large enough where FMLA applies to you, it's also essential that you inform employees of the FMLA guidelines so they can't claim later that they never knew the rules. For example, employees must give at least 30 days of notice if they intend to take leave. If you fail to give proper notice, an employee may still qualify for leave even if they gave only 10 days of notice.

Fair dismissal

You cannot terminate an employee for the mere act of taking FMLA leave, or for other discriminatory reasons. But there are circumstances in which dismissing an employee is legal, even if they are currently on the leave. For example, you can still terminate an employee before, during or after leave if:

  • They were on a performance improvement plan before the leave, and did not make the necessary improvements before going on leave.
  • The employee was going to be terminated anyway for reasons of poor performance.
  • The employee's poor behavior or poor performance only becomes known once the employee is already on leave.

It's never fun to have to dismiss an employee. But it's important to know that the FMLA itself does not prevent you from doing so under the right circumstances.

Ultimately, if you have questions about FMLA or another business concern, it is smart to consult with a business attorney who can answer your questions and make sure that you can make the right moves, continuing to grow your business while protecting yourself from potential liability.

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