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Is an employee on FMLA immune from layoffs?

by on February 17, 2010 · 12 Comments POSTED IN: HR Cafe
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A manager in your company has a dilemma, and he wants you, the HR manager, to tell him what to do.

He says, “I have to let someone go. I think it should be Joan. But she’s been out on FMLA leave. So can I lay her off anyway?”

You begin to explain that Joan’s absences can’t be held against her. But the manager cuts you off.

“I know that. The layoff has nothing to do with her being out on leave.”

So, you ask, is Joan doing a bad job?

“No, her performance has been acceptable. I’d keep her on if I could. But I’ve looked at everyone’s job and hers is the one we can eliminate with the least disruption. We can divide up her responsibilities between Ellen and Mike. Plus, she earns more than anyone else. If I eliminate any other position, it’s going to create big problems. So can I do it?”

‘Top 10 Termination Mistakes That Can Get Your Company Sued’

What would you tell the manager? Is Joan off limits just because she’s out on FMLA leave? And if someone else has to go instead, that’s hardly fair, is it?

The law vs. reality
Under FMLA, you don’t have to reinstate an employee after FMLA leave if his or her job was eliminated in the meantime. So it sounds like the company’s on solid legal ground.

But in the real world, an employer who did that got slammed. A nurse-manager at a hospital had taken FMLA leave. The day she came back to work, she was told her position had been eliminated and her responsibilities divided between two lower-paid employees. She was given a choice of another job at the hospital or 12 weeks of severance pay.

Instead, she sued, alleging FMLA retaliation. The court saw it her way. She got her old job, with back pay and the hospital paid a fine.

What do you think? Did the court make the right call? Leave a comment and share your views.

Cite: Parker v. Hahnemann University Hospital.

photo credit: Seattle Municipal Archives

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  • janetln

    Pls first read the Parker case as there are several additional pieces of information pertinent to whether one decides if the court made the right call.

  • janetln

    Pls first read the Parker case as there are several additional pieces of information pertinent to whether one decides if the court made the right call.

  • benjaminglipman

    The question, “Did the court make the right call,” can't be answered with the info provided. I am an attorney. My practice is heavily concentrated in the area of employment law – on both sides – i.e., I represent lots of employers and lots of employees. The way these cases unfold in court, whether jury or bench trials, is that both sides present their evidence and the judge or jury decides who it believes. The employer clearly has the right to make a neutral, non-discriminatory business decision – here, ostensibly, to eliminate a position. Of course, if the employee thinks that the decision was not neutral, but rather was motivated, in whole or in part by some unlawful consideration, such as the employee's FMLA staus, the employee sues, makes that allegation, and has the burden of presenting evidence sufficient to convince the judge or jury that FMLA status was a factor motivating the employer's decision. Bottom line is that all the cases are extremely fact intensive. Judges and juries may or may not regularly get the answer right – but, in any case, the decision is almost always case and fact specific.

  • benjaminglipman

    The question, “Did the court make the right call,” can't be answered with the info provided. I am an attorney. My practice is heavily concentrated in the area of employment law – on both sides – i.e., I represent lots of employers and lots of employees. The way these cases unfold in court, whether jury or bench trials, is that both sides present their evidence and the judge or jury decides who it believes. The employer clearly has the right to make a neutral, non-discriminatory business decision – here, ostensibly, to eliminate a position. Of course, if the employee thinks that the decision was not neutral, but rather was motivated, in whole or in part by some unlawful consideration, such as the employee's FMLA staus, the employee sues, makes that allegation, and has the burden of presenting evidence sufficient to convince the judge or jury that FMLA status was a factor motivating the employer's decision. Bottom line is that all the cases are extremely fact intensive. Judges and juries may or may not regularly get the answer right – but, in any case, the decision is almost always case and fact specific.

  • Mary Anne

    The FMLA's plain language mandates a conclusion that if an employer had grounds to fire an employee if he or she were not on leave, the FMLA does not protect an employee on leave from that same, lawful termination. Employee should be laid-off due to legitimate business reasons.

  • Mary Anne

    The FMLA's plain language mandates a conclusion that if an employer had grounds to fire an employee if he or she were not on leave, the FMLA does not protect an employee on leave from that same, lawful termination. Employee should be laid-off due to legitimate business reasons.

  • grnprn

    I have a question regarding FMLA.
    I work in the healthcare industry and have a nurse that uses FMLA to make the days off longer causing a real scheduling problem. I have other nurses that call off either before the weekend or after the weekend claiming FMLA. What to do?

  • grnprn

    I have a question regarding FMLA.
    I work in the healthcare industry and have a nurse that uses FMLA to make the days off longer causing a real scheduling problem. I have other nurses that call off either before the weekend or after the weekend claiming FMLA. What to do?

  • grnprn

    I have a question regarding FMLA.
    I work in the healthcare industry and have a nurse that uses FMLA to make the days off longer causing a real scheduling problem. I have other nurses that call off either before the weekend or after the weekend claiming FMLA. What to do?

  • grnprn

    I have a question regarding FMLA.
    I work in the healthcare industry and have a nurse that uses FMLA to make the days off longer causing a real scheduling problem. I have other nurses that call off either before the weekend or after the weekend claiming FMLA. What to do?

  • Pingback: Temporary reassignment didn’t violate FMLA

  • Pingback: Temporary reassignment didn’t violate FMLA

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