A large percentage of FMLA lawsuits arise from discharges and reorganizations affecting employees on family medical leave. Companies rarely prevail over employees claiming retaliation and violation of FMLA law.
When is it ok to fire an employee while they are on family medical leave?
Employee legitimately fired while on family medical leave, according to FMLA law
On leave, but fired for what she did long before she left
This case began with an upsetting discovery while an employee was away on FMLA leave, adopting a child in Romania.
Candis Smith worked as an administrative assistant for a hospital’s fund-raising division. One of her duties was to mail a thank-you note and a receipt to hospital donors immediately after they made a donation.
Unacknowledged receipts
When another coworker was reviewing paperwork in Smith’s office, he found about 400 receipts worth more than $350,000 that had never been mailed to donors. One unacknowledged contribution of $136,000 came from a donor who’d complained two months earlier that he hadn’t received a receipt.
As soon as Smith returned from Romania, she was summoned to a meeting. There, she was confronted with the unacknowledged donations and fired. She filed a lawsuit, claiming she was fired for taking FMLA leave.
Not FMLA law violation: She’d have been fired anyway
But the employer was persuasive in court. Smith’s failure to acknowledge donations harmed donor relations. And that failure occurred long before she took her leave. The court believed that she’d have been fired had she not taken leave. Her FMLA law violation claim was thrown out of court.
Remember: FMLA law doesn’t protect poor performers from getting fired, as long as they aren’t fired because they took FMLA leave. Just make sure you have the evidence to prove it.
Cite: Smith v. Memorial Hospital Corp., U.S. Court of Appeals, 8th Circuit, No. 01-2821, 9/11/02.
It looked like a case of retaliation, but FMLA law says discharge was legitimate
Supposedly on FMLA leave, he was spotted in a bar
A second-shift worker took a day of FMLA leave in order to accompany his sick father to the hospital. He did that during business hours, not when he would have been working. That night, when he would otherwise have been at work, he was spotted at a bar.
When his boss learned that the employee had been seen socializing when he was supposed to be on FMLA leave, he discharged the man.
Predictably, the employee sued for FMLA law violations, claiming that he’d been fired in retaliation for taking FMLA leave.
In court, the employee showed that he had indeed spent the entire day with his father in the hospital. Then, instead of reporting for his shift, he took care of personal business that he had put off in order to be with his father.
From the employer’s perspective, the employee had requested FMLA leave in order to be with his sick father. But he was spotted in a bar – without his father. That was enough to merit firing him.
Not retaliatory, says FMLA law
In siding with the employer, the court noted that the worker wasn’t fired for taking FMLA leave. Rather, he was fired because of a misperception.
Courts are loathe to step in and act as an HR department. FMLA law says that employers may fire employees for cause – as long as the discharge isn’t discriminatory.
In this case, the court believed that the employer hadn’t retaliated. It simply responded to a perception that the worker had been less than forthcoming about how he would use his FMLA leave time. The discharge was legal.
Cite: Brunelle v. Cyro Industries, U.S. District Court, District of Maine, No., 01-292-P-H, 8/20/02.
