Human Resource Blog

Firing an employee after the start of their FMLA leave

We are a company in California with an employee who went out on FMLA leave for depression on 3/30/09. She’d been with the company for just over a year at that point. Previous to her leave, she was absent quite a bit. She was disciplined for this once in July 2008 and put on probation which she passed just fine. There were no other formal disciplinary actions taken against her for absenteeism and there were no issues with her job performance. She submitted family leave paperwork on 3/30/09 stating that she was being treated for depression and requesting leave and to return part-time on 4/6/09. After receiving her diagnosis and paperwork and also speaking personally to her therapist, we called her on 4/3/09 and told her that she was being terminated for an unacceptable pattern of absenteeism but that she could still take FMLA leave. We now believe that she is going to sue us for wrongful termination and/or discrimination under ADA. Does she have a case or did we have the right to fire her for her previous absenteeism.

Thank you!

Sorry, but we have to ask this. What were you thinking??? It would be interesting to have a few more details on this situation. For example, how do you terminate an employee and then tell her that she can take FMLA??

This employee has an excellent case for wrongful termination in California, and for discrimination under ADA. In addition, the company is in violation of the FMLA law.

Any time that an employee takes off under FMLA (or similar state family leave laws, and California has 5) does not count as an absence, for disciplinary purposes. That is the whole point of FMLA. The employee has a free pass to take up to 12 weeks of unpaid, job-protected leave. After the FMLA leave is over the employee must be returned to his or her job. It is completely, 100% illegal to take any disciplinary action against an employee for taking time off under FMLA.

The employee was disciplined once for absenteeism in July, 2008. Obviously her attendance between August 2008 and March 30, 2009 was not a problem — because there was no disciplinary action taken during that period. On March 30, the employee requested FMLA to cover 3/30/09 to 4/6/09. In addition, the employee requested intermittent FMLA beginning on 4/6/09. Under the terms of FMLA (which apparently you granted) the employee was not absent between 3/30/09 and 4/6/09. She was on FMLA leave, which for disciplinary purposes is treated exactly as if she was at work.

Very simply put, you cannot terminate an employee on FMLA for absences that are covered by FMLA. (Unless there is something that you have not told us about this situation — maybe the employee not reporting properly.)

Depression is well-recognized as a serious health condition under FMLA, and has been since the 1980s. By the way, we would urge you to be very careful about contacting her doctor. The new 2009 FMLA regulations prohibit the employees supervisor from contacting the healthcare provider, and prohibit any employer from arguing with the doctor regarding when the employee can return to work.

In addition, this employees depression may well be a disability under the EEOCs new definition for 2009. If so, she is entitled to reasonable accommodation under ADA, the Americans with Disabilities Act. Time off and/or a reduced work schedule are very common accommodations under ADA.  

Our first recommendation is that you contact a California attorney specializing in employment law. He will probably suggest that you return this employee to her job, and permit her to take the rest of her FMLA while working a reduced schedule.

Please feel free to post additional questions or details.