True or False: "I'm on FMLA; You Can't Fire Me!"

Oftentimes, employees (and occasionally employers) mistakenly believe that they cannot be terminated while on protected leave under the Family and Medical Leave Act (“FMLA”). This is of course not accurate, but it is important to note that terminations occurring either while an employee is on leave or after returning from leave often generate knee-jerk reactions – and sometimes corresponding lawsuits – asserting that the employee’s taking of leave was the reason for termination. These “suspicious timing” allegations can be overcome by well-documented evidence that the employee would have been terminated irrespective of any FMLA use or invocation of FMLA rights. Having and maintaining the pertinent documentation supporting non-interference and lack of retaliation for taking FMLA leave when terminating an employee who is on leave can go a long way.

As an illustration, in a recent case in Kansas, a restaurant group employer had fired a general manager for poor performance while the employee was on medical leave. The employer nevertheless prevailed on the employee’s FMLA interference and retaliation claims primarily because it successfully showed that the termination decision was based, in part, on the manager’s own negative self-evaluations and that the process of termination had begun before the employee took FMLA leave.

The manager had frequently rated his own work as “unacceptable” – the lowest available rating – in his monthly evaluations required by the company. Based on this information, the court concluded that employer did not interfere with his FMLA rights because his self-evaluations, among other documentation of poor performance constituted “overwhelming evidence” that it would have fired the employee regardless of his use of FMLA leave. In addition to the evidence of the employee’s poor performance, the employer was able to demonstrate that it had placed the manager’s position on a “needs” report prior to his FMLA leave, which meant that the restaurant had already begun looking for a replacement before he had even requested his leave.

Terminating an underperforming employee on leave or shortly after returning from leave is a situation that must be managed carefully and should be done in consultation with legal counsel. However, the recent decision illustrates that arguments of suspicious timing of FMLA leave and termination – which can be enough to permit a jury to decide that retaliation was involved – can be overcome where the employer can demonstrate that the termination decision had nothing to do with the employee’s leave. It thus underscores the importance of doing tasks such as the following when terminating an employee who has recently been on or is on FMLA leave:

• Always perform a full and fair investigation when deciding to terminate an employee, especially when the employee is on FMLA leave;
• Marshall all evidence that supports that adverse employment decisions have been taken for non-discriminatory reasons;
• Create a timeline of events to establish that decisions were made prior to the decision to take leave and offer documentary evidence that was created contemporaneously with each of those decisions;
• Have all termination decisions reviewed by legal counsel and other appropriate management personnel to ensure that unlawful retaliation is not involved in the decision.