HR MATTERS E-TIPS
FMLA Leaves and Termination Actions
Can you terminate an employee who exhausts the 12-weeks of FMLA
leave or if you discover an earlier performance problem during FMLA
leave? As often is the case, the answer is "it depends."
You probably are well-aware of your obligations under the Family and
Medical Leave Act (FMLA) to grant eligible employees up to 12 weeks
But, what happens when the 12 weeks are exhausted? Can you
terminate an employee who cannot return to work after 12 weeks of
FMLA leave? Or what happens if you discover a performance problem
while the employee is on leave?
One thing is clear. You cannot discharge an employee for taking
protected leaves or exercising statutory rights guaranteed by the
So, for example, you cannot terminate an employee simply for
requesting or taking FMLA leave.
However, you may terminate or discipline an employee for reasons
unrelated to the leave. So, for example, you can terminate an
who does not return to work after exhausting FMLA leave, as long as
employee is not entitled to any additional legally protected leave.
Similarly, you can take action against an employee for violation of
policies or for poor performance. Find out below what you can and
cannot do under the law.
* FMLA Requirements *
The FMLA requires employers with 50 or more employees and all public
agencies and schools to grant up to 12 workweeks of unpaid leave to
eligible employees for certain family and medical reasons. The FMLA
also provides reinstatement rights to employees who take leave under
the statute and prohibits employers from discharging or
against any person who exercises rights under the FMLA or who
opposes any practice made unlawful by the law.
So, for example, in Darby v. Bratch, 287 F.3d 673 (8th Cir. 2002),
Eighth Circuit allowed a police dispatcher to sue the police
commissioners and city officials for retaliation. The employee was
denied a promotion, disciplined for unpaid leave, and recommended
termination upon her return from FMLA-covered leave.
And, in Liu v. Amway Corp., 347 F.3d 1125 (9th Cir. 2003), the Ninth
Circuit determined that an employee who was terminated could claim
retaliation under the FMLA. The court found that her employer's
unlawful attempts to pressure her into returning early from
leave amounted to denial of leave.
* Exhaustion of FMLA Leave *
If the employee does not return to work at the end of the 12 weeks
required by the FMLA, the FMLA's protections no longer apply. Thus,
you may terminate the employee without violating the FMLA, as long
the termination is consistent with the treatment of similarly
employees who have taken other kinds of extended leave. However,
you must also be sure that the employee is not entitled to any
additional leave under other laws (see below).
* ADA, PDA, and State Leave and Workers' Compensation Laws *
Other laws may provide additional protections to an employee at the
of the 12 weeks of FMLA leave. Included in this category are the
Americans with Disabilities Act (ADA), the Pregnancy Discrimination
(PDA), and certain state leave and workers' compensation laws.
The ADA may require you to allow a disabled employee to extend a
leave of absence beyond the FMLA's 12-week minimum (or the
maximum period allowed by your policy, if longer) if the extension
constitute a "reasonable accommodation" for the employee's
Not all serious health conditions covered by the FMLA, however, meet
the disability definition. Under the ADA, a disability is defined as
mental or physical impairment that substantially limits a major life
activity, and it has been interpreted to cover longer term, chronic
conditions. A reasonable accommodation is one that allows the
employee to perform the essential functions of the job without
an undue hardship on the employer. The ADA does not place any
specific time limit on the amount of leave a disabled employee can
As a general rule, however, these leaves cannot be indefinite.
Under the PDA, an employer that maintains a policy of leniency in
return date of employees on temporary medical leave for reasons
than pregnancy may not lawfully terminate an employee who does not
return to work immediately after pregnancy leave. So, for example,
Maddox v. Grandview Care Ctr., 780 F.2d 987 (11th Cir. 1986), the
employer's policy of limiting pregnancy leave to three months
the PDA since it allowed indefinite leaves for other illnesses. In
addition, some state family and medical leave laws provide for more
12 weeks of job-protected leave.
Finally, if the absence is caused by a work-related illness or
some state workers' compensation laws may provide additional
rights. For example, West Virginia law requires employers to
an employee who is absent because of a work-related injury if the
or a comparable position is available, and, if not available,
must place the employee on a preferential recall list.
* Performance-Related Problems *
While the FMLA and other laws protect an employee's right to take
leave, it does not insulate employees who are disciplined or
for reasons unrelated to the leave. So, if an employee was
performance problems before the leave, or if you discover problems
while the employee is on leave, you can take action based on those
Thus, in McBride v. Citgo Petroleum Corp., 281 F.3d 1099 (10th Cir.
2002), the Tenth Circuit found that an employee who was terminated
while on FMLA leave for performance problems could not claim
of her FMLA rights since she was terminated for reasons unrelated to
leave. Although her illness necessitated the leave, the court said
employer did not have to let her show she could do her job when not
because the FMLA only protects the right to request and take leave.
Similarly, in Kohls v. Beverly Enters. Wis., Inc., 259 F.3d 799 (7th
2001), the employer did not violate the FMLA when it terminated an
employee once she returned from FMLA leave because of performance
problems and discrepancies in a trust fund account that were
while she was on leave.
Remember, though, if you take disciplinary action, you must be able
show that your actions are related to performance, not to the taking
leave. In Smith v. Diffee Ford-Lincoln-Mercury, Inc., 298 F. 3d 955
(10th Cir. 2002), the Tenth Circuit allowed an employee terminated
a medical leave for alleged performance problems that the employer
about before her leave to pursue a claim for FMLA violations.
showed that the employer had for years let the problems persist
properly documenting or addressing them and took no action until the
employee exercised her rights under the FMLA.
Subscribers to the Personnel Policy Manual and HR Policy Answers on
CD can find more information on the
termination in Chapter
703, note 46.
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