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Can I be Terminated while on FMLA Leave?

The answer is that a company can’t disturb, or interfere with your FMLA leave. They can’t fire you unless you otherwise would have been fired. Frequently I see cases where there’s a reduction in force that occurs while an employee’s out on FMLA leave. The accusation always is that that’s in retaliation, so from a company standpoint it’s best to wait for the leave to run its course, and then terminate the person if there’s reason to terminate the person, but a person can’t be fired because they took the FMLA leave.

An area that I frequently see, and that I think is difficult for companies to administer is the intermittent FMLA leave because people are human, and most supervisors really don’t like intermittent FMLA leave. Admittedly, it’s very inconvenient, it can be very frustrating when someone is out either because they’re taking care of somebody else, or because they have an unpredictable need for covered leave because of their own serious health condition.

It can be disruptive to the workplace, and so frequently I find there is a lot of tension, and friction between supervisors and users of the intermittent FMLA leave, and that can lead to a situation where a supervisor begins to treat that person differently than they treat everyone everybody else, and it ends up resulting in an adverse employment action whether it’s a demotion, or probation, or termination. Then, the employee does have some recourse because when you look at the situation in total it’s clear that the supervisor has been upset, frustrated by the intermittent leave, and they lash out, and they take adverse employment action against the employee allegedly because the person was taking taking the intermittent leave.

Those are some of the better cases, from a plaintiff standpoint, that you see particularly even with large organizations because whereas a lot of large organizations know how to administer it in large blocks it’s just human nature that supervisors are going to be frustrated. No matter how much they’ve been trained about FMLA leave, no matter how much they understand it on an intellectual level that they can’t retaliate it’s that constant interruption, that constant frustration from having someone with a special circumstance that can be a problem.

I know we just touched the surface of the FMLA, it’s a very complex statutory scheme, but it’s a very beneficial one because it allows employees who have a temporary disability some time to convalesce, to come back to work and be a good productive worker. It allows people to take care of loved ones, and come back and be a productive worker. It allows people to take some time with the birth or arrival of a new child to do some bonding, and get into a rhythm, and then come back and be a productive employee. It’s good business because one of the hardest things to do is to find a good employee sometimes, and so this allows some flexibility where employees can go take care of their health, take care of their family situation, and then come back and hopefully, for the long haul, continue to be good valued employees.

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