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FMLA and an employee's dismissal

Enacted in 1993, the Family Medical Leave Act provides employees with job security protection in the event that he or she has a qualifying family and/or medical reason that, under FMLA, warrants a leave. During a 12-month period, employees with qualifying circumstances can take up to 12 weeks of unpaid leave from their jobs.

Provided an employee meets eligibility requirements, FMLA may be taken for the following reasons:

  • Birth of a child / care for a newborn
  • To care for a spouse, child or parent with a serious health condition
  • To deal with / recover from one's own serious health condition
  • In the event the employee adopts a child or becomes a foster parent
  • Extenuating circumstances related to a spouse's, child's or parent's military service

In cases where an employee is fired while on FMLA leave or soon after returning to his or her job after taking leave, an employee may choose to take legal action. Depending on the circumstances of one's case, an employment attorney may argue that an employer is guilty of interference and retaliation. It's important to note, however, that the U.S. Court of Appeals for the Tenth Circuit recently weighed in on this issue and provided perimeters for when the firing of an employee who is on or recently returned from FMLA may be legal.

For example, an employee’s dismissal may be legal if, prior to any employee's leave, an employer had or was in the process of making decisions related to a workforce reduction which included the employee. In this case, an employer would likely be required to provide proof that such discussions or decisions predated an employee's FMLA leave. Additionally, if it was documented prior to an employee's leave that he or she was late or absent from work, non-compliant or failed to perform essential work duties; an employer may be justified in firing an employee while on leave. 

The circumstances surrounding FMLA leaves are often highly personal and sensitive in nature. It's wise, therefore, that any employee who believes that he or she was wrongfully terminated or retaliated against due to an FMLA leave consult with an attorney.

Source: HR Morning, "5 times it’s OK to fire an employee on FMLA leave," Christian Schappel, Oct. 14, 2015

Business Management, "The 5 reasons employees can take FMLA leave," Oct. 19, 2015

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