Human Resource Blog

Termination after fmla

Is there a certain length of time after returning from FMLA the employer must wait before terminating an employee? Basicaly I am asking, can we take an employee back at their same or comprable position then a week later terminate him?

Yes, you can take an employee back in his same position and terminate him one week later. In fact, you could terminate the employee while he was out on FMLA.

The federal Family and Medical Leave Act or FMLA permits employees to take up to 12 weeks of unpaid, job-protected leave for a variety of reasons, including the employees serious health condition, or to care for a family member with a serious health condition. Under FMLA, the employee must be returned to his or her previous job, after FMLA ends.

An employer cannot take any negative job action against an employee because the employee uses FMLA.

However, an employer can take any job action against an employee on FMLA, that would have been taken anyway, if the employee was not on FMLA. Example: Suppose Suzie goes on FMLA for 5 weeks. Her employer is mad that Suzie is taking time off, and fires her. That would not be legal under FMLA. However, suppose Tina is a secretary and takes FMLA for 12 weeks. While Tina is on leave, the employer lays off all the secretaries in the company. The employer can legitimately lay off Tina.

In addition, if the employer learned while Tina was on leave that she had been falsifying payroll records, or committing some other serious violation of company policy, the employer could terminate Tina for those infractions.

The employer does not even have to wait until the employee returns from leave, to terminate him or her.