When You Can--and When You Can't--Fire People on FMLA

If you have a baby, get cancer, or even have a bad flu, your job is protected, except when it isn't.

You are entitled to get your job--or a similar job--back as long as that job exists. A company isn't obligated to keep a position because the incumbent is on a protected leave.



This rule can result in some sketchy terminations. If you eliminate one of two positions, and the person in that position just "happens" to be on FMLA, the courts may not believe you when you say the position was eliminated.

But in the case of large layoffs, it's likely that it truly is a position elimination. In mass layoffs, the people deciding which position stays and which one goes may have no idea who is in the position when they target it. Now, of course, HR and the manager should be aware before they notify the employee. According to employment attorney Jon Hyman, they may wish to increase the severance a bit due to a "heightened risk of a claim being brought." Still, it is "the employer's responsibility to treat the employee on leave no worse than if they weren't on leave."

So, when you hear horror stories like this one posted on LinkedIn by McKenzie Gregory, remember that if Salesforce did a layoff as they should, her status would have played no role.

"I found out last week that I was a part of the "most recent" Salesforce layoffs. Its strange, I wasn't heads down or knee deep in some project and the rug got pulled out, but rather I was washing baby bottles while humming a damn Wiggles song stuck in my head (those guys really get ya) when I got the news. I was shocked, I thought I was protected being on maternity leave ... and obviously I was wrong. You can indeed get laid off on mat leave. Noted.

If someone asked me "Do you think you'd still be employed if you didn't take maternity leave?" My answer would be ... I don't know. But I probably would've had a better chance to fight for my position if I was working than I did on leave. But I guess hard times call for hard decisions."

In a layoff, you eliminate the position. You can't refill the position and have it still count as a layoff. Can you terminate someone for cause or poor performance while they are on FMLA?



The answer is, of course, it depends. If an employee is lying about their condition, you can terminate them--like what happened when an employee said she was taking intermittent FMLA for her medical condition, but it turns out she was going on vacation and to church meetings. Other employees have been "caught" doing things like serving time in jail and working a second job. As long as you keep in mind that not all FMLA leave requires you to lie in bed, you can terminate people who are abusing the process.

If you find out that an employee has been doing a terrible job or downright stealing from you after they go on leave, you can terminate them. Just ensure you have your i's dotted and t's crossed, and double-check with your employment attorney before terminating.

As employment attorney Robert A. Klinger says, "An employer may terminate an employee on FMLA leave, provided the reason for the termination is completely unrelated to the employee's absence from work."

If a company terminates an employee because they are on FMLA, that's illegal. If an employer harasses an employee for using this law, that's FMLA interference and illegal. If an employer demotes or transfers an employee to a worse position after they return from FMLA, that's also illegal.



Overall, you need to be careful when taking adverse actions against an employee who is on FMLA or has an intermittent leave accommodation, but you can terminate someone on FMLA leave.