Is it ok to terminate an employee, but then let them complete their FMLA leave?


Tell me what you think of this.

An employee is having behavioral issues at work, which leads to an official warning from the employer. The following month, a dispute between the employee and his supervisor leads the supervisor to email Human Resources that the employee’s behavior “is consistent with his issues of attempting to intimidate people” and “I no longer think [his] situation is redeemable and feel I need to act.” He asks for “guidance on next steps.” That evening, the supervisor decides to terminate the employee’s employment.

Meanwhile, unbeknownst to the supervisor, the employee goes to a casino that same night, suffers a nervous breakdown, and is hospitalized. The next day — remember, the employee doesn’t know about the termination decision — he requests FMLA leave. The employer grants the leave.

A few weeks later, the supervisor and others from HR contact the employee to inform him that the company is terminating his employment. A subsequent letter indicates that the termination date will be finalized after the employee’s FMLA leave ends. The termination becomes effective much later in the year.

The employee sues the company and claims FMLA violations.

Do you think the employee has a decent case?

Both the trial court and the Sixth Circuit Court of Appeals did not.

Specifically, the Sixth Circuit concluded that the employer did not deprive the employee of any FMLA to which he was entitled because the FMLA leave itself was not the trigger for the employee’s termination of employment.

And while the FMLA charges an employer with restoring an employee to their old job after FMLA ends, that duty does not apply to an individual who would have lost their job regardless of taking FMLA.

Finally, while the timing was suspicious, that alone cannot establish that a termination of employment is pretextual.

So, while the company probably could have denied the FMLA leave altogether, it did not open any new can of worms by allowing the employee to take the leave following the termination decision.

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