Human Resource Blog

FMLA Leave

Hello,
One of our employees had been on maternity leave (FMLA) this year. Is there any law prohibiting the employer to lay off the employee for one year? What are the policies for this issue?

It’s not clear from the question if the employee is still on FMLA leave, or not. It is also unclear how long the worker has been on FMLA leave.

FMLA, the Family and Medical Leave Act of 1993, permits workers to take up to 12 weeks of unpaid, job-protected leave per year. It generally applies to employers with 50 or more workers within 75 miles, and to employees who have worked 1,250 hours or more in the past 12 months.

FMLA covers a variety of situations, including the birth of a new baby.

Under FMLA, an employer must give the worker her job back, when she returns from leave. If the same job is not available, the employer must give the worker a job with the same benefits, pay, hours and working conditions. The worker must return after 12 weeks of leave, or face being terminated.

Employers must also maintain an employee’s group healthcare coverage during FMLA leave. In many (but not all) states, the employer can require that the worker pay her usual portion of the healthcare insurance premium.

It would absolutly be a violation of this federal law for an employer to fire or “lay off” a worker just because she was on FMLA leave.

When a worker returns from FMLA leave, she is entitled to seniority and benefits just as if she had never left. The only exception is, employers are allowed to take FMLA leave into account when giving “perfect attendance” awards.

A recent change to the FMLA called NDAA requires employers to give up to 26 weeks of unpaid, job protected leave to relatives of soldiers who are active military duty. This includes members of the National Guard and Reserve that have been deployed, or are about to be deployed.

An employer can lay off a worker who is on FMLA, but only if the employer is laying off other employees. Suppose an employer decides to lay off the entire tech support department, and outsource that function. If one of the tech support people was on FMLA leave, she could be laid off with the rest of her department.

However, any employment decision has to be made WITHOUT taking the employee’s status (FMLA leave) into consideration. For example, an employer who was laying off only 5 people could not decide, “Let’s lay off June, she’s on FMLA leave anyway.” That would be a violation of federal law.

If the employee in this question has returned from FMLA leave, than there is nothing to prevent the employer from laying her off…provided, again, that decision is unrelated to her FMLA status. If layoffs are done according to seniority, then the employer must count the time the employee was on FMLA as work time.