Human Resource Blog

Firing an employee after the start of FMLA leave - Part 2

Hi,

Thank you for your generous feedback on my original question. Let me clarify a few more details of the situation.

In the conversation we had with the employee on 4/3/09, we gave her two options. We told her we would terminate her immediately and she could collect unemployment or, because we wanted to help her out some, we offered to put her on FMLA leave for 12 weeks with the understanding that she was terminated and would not be returning. We also told her that she could ask her doctor for the full 12 weeks and collect disability during that time before filing for unemployment. She did just that and emailed us paperwork changing the leave to 3/30/09 - 6/22/09.

We then sent her our Notice to Employee Regarding Request for Leave of Absence. That notice approves her leave request and it does state that “Your leave time will count towards any reinstatement rights under the Family Medical Leave Act” although we made it clear to her verbally that she was terminated. Now she’s pretending that she doesn’t know that she’s been terminated and has emailed me asking what to expect upon her return to work on 6/22. I’m reluctant to put anything in writing but left her a voicemail reiterating our conversation of 4/3. I asked her to please call me back for a live chat but she hasn’t. Does she legally have to return my call? Also, her replacement is already in place so her job is not available any longer.

Another question - Were we legally allowed to terminate her on 4/3 even though she was 5 days into an FMLA leave? We were not counting her FMLA leave time as part of the unacceptable pattern of absenteeism that we considered when deciding to terminate her. Additionally, she called in sick each day from March 16 - 19 and March 23 - 25. She brought in Dr. visit verification for appts. on March 19 and 25. I told her in person on March 26 that we would need information regarding what she was treated for on those visits. She brought in paperwork for the March 25 visit that indicated she was referred to an early recovery alcohol program. She did not bring in info. on the March 19 visit.

Sorry for the long post but I appreciate any guidance you can provide in this complicated matter.

Thank you!

Thanks for providing more info on this situation! Unfortunately, it does not really change our answer, and raises some additional issues.

Lets take a step back from this for a second, and look at this from a legal perspective. The federal FMLA or Family and Medical Leave Act entitles employees to 12 weeks of unpaid, job-protected leave in a 12-month period. When an employee returns from FMLA, by law, the employee must be returned to their original job. If the employer has (rather unwisely) hired a new person for the job, the new person must be moved to another position or terminated. This is true, even if the new person did a better job than the employee who was on FMLA.

Being returned to the original job, including the same position, pay, hours, benefits, working conditions, etc. is the most basic right under FMLA. If emloyers did not need to return the employee to his or her job, there would be no point to granting unpaid FMLA, would there? (And yes, we realize that you offered this employee some disability pay. But that does not change the law regarding FMLA.)

Under the 2009 FMLA regulations, 1) when an employee has an absence that could be covered, the employer has 5 days to notify the employee in writing and provide the employee with paperwork to sign up for FMLA. 2) The employee has 14 days to return the paperwork. 3) Once the paperwork is returned, the employer has 5 days to grant or deny FMLA. 4) After FMLA, the employee must be returned to his or her job. 5) If the employee has a continuing disability, the employer must grant reasonable accommodations under ADA, the Americans with Disabilities Act. In this case, you as an employer have followed steps 1 to 3 for the absence that began 3/30. Now you need to follow steps 4 and 5.

Legally, you must return an employee on FMLA to his or her job when the leave is over. This is the law. Telling the employee ahead of time that you intend to break the law, does not make it legal. (Imagine telling African American employees that you intend to discriminate against them in the future. That does not make it legal, does it?)

By the way, the courts have repeatedly ruled that even if an employer grants an FMLA request in error, the employee is still entitled to full rights including being returned to their job. (We do not even refer to it as reinstatement, because the employee never lost their job.)

Your initial post indicated that the employee had depression. Now we have discovered that she also had alcoholism and was being treated for that condition. Apparently this was the reason for her absence on 3/23 to 3/25 and possibly 3/16 to 3/19 as well. Here is more bad news. Alcoholism is a serious health condition under FMLA. As soon as you knew about this problem, you were required to give the employee written notification of her FMLA rights (including the right to be returned to her job) within 5 days. That FMLA leave, if granted, would cover the 3/23 to 3/25 absence, and probably the 3/16 to 3/19 absence as well. By not notifying the employee of FMLA within 5 days, you were again in violation of the law.

No, the so-called termination on 4/3 was not justified. Per your previous post, the only written warning for absenteeism was in July 2008. Any competent attorney will point out that after the two March absences, the employees attendance was not considered bad enough to terminate her by 4/29. (Nothing change after 4/29 except the employee went on FMLA.) It was not even considered bad enough to give her a written warning. It appears obvious that it was not until the 3/30 FMLA absence that this became a *problem*. (And again, it is very likely that one or both of those absences should have been FMLA.) The timing certainly creates the appearance that this was illegal retaliation against the employee for taking FMLA (or for absences that should have been FMLA.)

If the situation was not serious enough to terminate or even warn the employee by 3/29, it was not serious enough to terminate her (with no change in circumstances) on 3/30. Employers do  not write employees up merely to avoid paying unemployment. They also document problems to avoid discrimination charges. Because you have no written record of disciplinary action regarding these two absences, you have tacitly said that they were acceptable.

Disciplining or terminating an emloyee due to an FMLA absence is illegal. For disciplinary purposes, the employee on FMLA must be treated as if they were at work. We also object to you using FMLA as a bargaining chip, to induce the employee to quit or allow termination. FMLA is not a negotiating tactic. It is a basic right enjoyed by most workers. The employer cannot legally put these kind of restrictions or conditions on it.

If there were other performance issues, they should have been addressed before the employee went on FMLA leave. Addressing them now certainly creates the appearance that you are illegally retaliating against this employee for taking FMLA or disciminating against her due to her disabilities.

There is also a strong element of disability discrimination here. If this employee was absent on the same dates due to pregnancy complications, would she be facing termination? If this employee had missed the same number of days due to cancer treatment, would you have terminated her? We suspect the answer is a resounding *no*. The employee would have immediately been put on FMLA on 3/16.

Both depression and alcoholism are disabilities under the current EEOC definition. It seems very probable that you are illegally discriminating against this employee due to those disabilities, rather than merely due to her attendance.

If this employee filed a complaint about disability discrimination with the EEOC and a complaint about FMLA with the U.S. Department of Labor, it is probable that both of those agencies would sue you. She would almost certainly win a wrongful termination case in California. We are sure that you could find an attorney that would charge you thousands of dollars to defend this case. You would probably lose anyway, based on what you have told us.

Our advice still stands. You should consult the EEOC and an attorney ASAP. This is one of the clearest cases of FMLA abuse, disability discrimination and wrongful termination that we have seen in a long while.

The easiest — and possibly the only — way to reduce your liability on this matter is to return the employee to her rightful job, and start off with a clean slate. Once she returns, you can address any non-FMLA absences or performance issues the employee may have from that point on. But you cannot retroactively address issues that you were aware of before her FMLA leave, and neglected to follow through on at the time.

To answer your first question, no the employee is not legally obligated to phone you or meet with you in person so you can terminate her. For one thing, she may be in a treatment facility (rehab) that precludes that. Under FMLA, the the employee is obligated to stay in touch with you, to reassure you that she intends to return to work, which she is doing by email. She is probably hoping that you will come to your senses before she has to meet with you in person — and so are we.  

Read more about disability discrimination at: http://www.eeoc.gov/types/ada.html

Read more about FMLA at: http://www.dol.gov/esa/whd/fmla/  and http://www.dol.gov/esa/whd/regs/compliance/whdfs28.pdf

The first two websites have myriad links to more info on the topics.

Bear in mind that this answer only addresses the issues under the federal FMLA. The state of California also has family leave laws, anti-discrimination laws and very strict laws against wrongful termination that were probably violated in this case.