FMLA law: Legitimate termination while on FMLA leave?

by on January 13, 2010 · 8 Comments POSTED IN: HR Info Center

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.

8 Comments on This Post

  1. Jillimus11
    February 10, 2011 - 2:25 am

    i used 6 weeks of fml in july of 2010 and now had spinal surgery and need to take another 12 weeks of leave so im over on medical leave as my employers say only 12 weeks in 12 month period so i will lose my job as of feb15 as that is when my fml ends but i have drs order not to return to work tilmarch 8th light duty so is it fair to lose my job qnd have to reapply for my job and i also loose all my benefits til july1st, is this legit to do this or i can i ask for an extention in my leave?? im stuck between a rock and a hard shell and thank goodness i have short term diability thru my employer so that is helping some but so upset that im going to lose my job for 2 weeks due to my fml up on feb 15th.. any suggestions from anyone???HELP ME

    • Anonymous
      February 10, 2011 - 2:57 pm

      Thanks for your comment. We can’t respond to questions about specific
      situations or provide legal advice, but we invite other readers to post
      comments or responses to this question. We encourage you to seek guidance
      from your HR department or, for legal questions, consult an attorney.

    • Jspitty21
      October 12, 2011 - 6:27 am

      we all need money to live .but your health is much more important then any job.take care of yourslf 1st. then draw unemployment second.nothing in this world anymore is fair.the employers see you as numbers not people these days

  2. Aroian78
    February 16, 2011 - 9:43 pm

    employer states paperwork not received on time and then fires an employee;employee goes and collects and appealing because employer states employee quit……………………..

  3. jackie
    September 5, 2011 - 5:46 pm

    under fmla in ohio if you are out due to migranes , what is an activity under that law, what can u do or not do in ohio… what would be consider an activity..

  4. Annoymous
    January 6, 2012 - 9:45 pm

    Was on intermittent FMLA for Fathers Terminal Illeness to take him to/from weekly treatments.
    My employer wrote me up for 1 & 2 min late to work and made statements about the burden of my absences and doubt of my Fathers illness!
    * Also was working another part-time xmas job 6-10hrs on weekends with employers knowledge.

    When his condition deteriorated I was placed on Full FMLA & terminated 15days later over the phone stating I had abused the company leave of absence policy by being on Full FMLA and working part-time job.  They never replied to the second FULL FMLA paperwork “read they had 5days to respond” They already knew about part-time job.

    One week later I recieve final paycheck and it reflects one week of pay under FMLA, basically they admitted I was on FMLA! 

    Im thinking I need an attorney, what do you think?

    Called DOL and EEOC today, no response or call back yet

  5. Torry1027
    March 28, 2012 - 12:00 am

    So from my understanding you are only allowed 3 months in a twelve month period? I have been on medical leave for eight months and was just terminated because I failed to update them on my condition..Is that legal?

  6. Fsudiane
    May 12, 2012 - 9:11 pm

    I can’t find any examples of out specific situation and I’m still confused. My brother-in-law was just approved for FMLA (received approval by certified mail 3 days ago) for mental illness and subsequent alcohol abuse.  He was just called in to work yesterday and fired for things he did at work leading up to finally being admitted to a facility for the above mentioned issues.  He worked for the company for 27 years with NO problems, but just in the last year he started falling apart due to these issues.  To us his strange and out of character behaviors were obviously stemming from his condition.  We can’t figure out how they could fire him. help!

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