Human Resource Blog

FMLA and Fuloughs

We have an employee that is currently on FMLA intermittent leave that we are planning to furlough. Is this legal or will there be a compliance issue that we will have to deal with?

The answer depends upon why you are putting this employee on furlough. An employer cannot retaliate against an employee who takes unpaid, job-protected FMLA leave, nor can the time off under FMLA be the basis for any employment decision or discipline.

However, an employer can take any action against an employee on FMLA that would have been taken anyway, if the employee was not on FMLA.

Example: Sue takes 25 hours of intermittent FMLA in a single month. Her employer resents Sues absence, and penalizes her by putting her on unpaid furlough. This is an illegal employment action based on FMLA. Alternately, maybe the employer needs to cut payroll, and figures that since Sue is taking some time off intermittently under FMLA, it might as well be her. This would be illegal employment discrimination against an employee for using FMLA.

However, Anne is one of 5 customer service reps. She has used several days of intermittent FMLA in the past two months. All of the customer service reps are being put on unpaid furlough next week. Anne will be put on unpaid furlough, as well. This action is lawful, because Annes furlough has nothing to do with her FMLA — the employer would have taken this action anyway, if Anne were not on FMLA.