How did this employer terminate an employee while on FMLA without violating the law?


Employers cannot interfere with employee rights under the Family and Medical Leave Act. However, the FMLA doesn’t exonerate employee misconduct, including when an employer discovers it during the leave.

I’ll give you an example from a federal court decision I read last night.

The plaintiff needed knee replacement surgery and informed her employer that she needed leave. So, she submitted an FMLA leave request, which the defendant approved to permit the plaintiff to take leave from mid-February to mid-May.

However, the defendant fired her less than two weeks after the plaintiff’s FMLA leave began.

That’s FMLA interference, claimed the plaintiff. But was it, though?

To prevail on an FMLA interference claim, an employee must establish that her employer denied her FMLA benefits to which she was entitled. The plaintiff argued that her termination while on leave satisfied that requirement.

However, an employee’s right to return to work after taking leave is not “unlimited,” noted the court. Indeed, the FMLA regulations clarify that “[a]n employee has no greater right to reinstatement or to other benefits and conditions of employment than if the employee had been continuously employed during the FMLA leave period.” Therefore, if an employer establishes that it would have fired an employee on leave even if she hadn’t taken it, then the burden shifts to the employee to rebut that presumption.

Here, the defendant presented “substantial evidence” that the plaintiff had no right to resume employment upon her return from FMLA leave. Specifically, about a month before the plaintiff’s leave began, the defendant received a complaint accusing the plaintiff of stealing food pantry donations with corroborating video evidence. HR began investigating and engaged the local police to investigate the allegations further. That investigation confirmed that the plaintiff had used the defendant’s vehicle to take items to her home and recommended termination of employment. These actions were against company policy. HR recommended the plaintiff’s termination of employment, and the defendant followed HR’s recommendation.

The plaintiff argued that the defendant had no written policies explicitly forbidding the use of its vehicles and food pantry distributions. Except, the defendant terminated the plaintiff for theft, which discredited the defendant and violated its Employee Manual. The Employee Manual noted that conduct that discredits the defendant may result in corrective action, including discharge.

Since the plaintiff acknowledged receiving the Employee Manual and had no evidence that she didn’t at least violate it, it was pretty clear that she would not have retained her job absent taking FMLA leave.

For these reasons, the defendant could fire the plaintiff without engaging in FMLA interference.

“Doing What’s Right – Not Just What’s Legal”
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