Can You Be Laid Off While on FMLA?
An employer may terminate or lay off an employee while on a Family Medical Leave Act (FMLA) absence if the termination is not due to reasons surrounding the FMLA leave. Courts have generally held that employees on FMLA leave maintain no greater protection against layoffs for reasons unrelated to FMLA than they did prior to the leave.
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Background
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The FMLA is a federal law that generally provides an eligible employee with 12 weeks of unpaid leave during any 12-month period due to a serious health condition (either of the employee or the employee's immediate family member) that interferes with the employee's ability to perform his or her job.
Employee Rights
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The law gives an employee the right to be treated as he or she would have been had such employee not taken FMLA leave. It is important that the employee who requests or uses FMLA leave not be discriminated against merely for exercising his or her congressionally approved rights.
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Workforce Reduction
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Where an employer maintains a legitimate business purpose for laying off an employee, then such employee may be terminated even if he is on FMLA leave. All the employer is required to do is be prepared to show that there was a business need for the layoff and to show the objective guidelines for determining which employees were laid off.
Burden of Proof
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According to Alexis Pheiffer and Pamela Ploor of Quarles & Brady law firm, when an employer lays off an employee on FMLA leave, the U.S. Department of Labor takes the position that it is the employer's burden to prove that the employee would have been terminated irrespective of his or her request for use of FMLA.
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References
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