FMLA: Termination: Can we lay off someone while that employee is on leave under the Family and Medical Leave Act (FMLA)?

May 11, 2012
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Yes, it is possible to lay off an employee while on FMLA leave. Although employees do have job and benefit protections during FMLA leave, an employee is not totally exempt from termination or layoff. According to the FMLA regulations, “An 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. An employer must be able to show that an employee would not otherwise have been employed at the time reinstatement is requested in order to deny restoration to employment” (Sec. 825.216, Limitations on an employee's right to reinstatement).

One of the examples of denial of job restoration used in the regulations is layoffs. Therefore, an employer should take in account several considerations before laying off or terminating an employee while on FMLA:

Does the company have a valid business reason for eliminating that employee’s position or laying off that employee?

  • Would the employee have been laid off or terminated if that employee was still working and not on FMLA leave?
  • Does the company have enough documentation to prove that employee would have been laid off or terminated regardless of the FMLA leave?

Employers will still have the burden of proving that the layoff or termination was not related to the FMLA leave. For that reason, employers should be cautious when laying off or terminating an employee on FMLA leave. Before taking action, a company should take all considerations into account and ensure that proper documentation is available should any questions arise.

Professional Pointer: Employers should document the valid business reason for the layoff to prove the employee would have been laid off regardless of the FMLA leave.

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