By Keisha-Ann G. Gray
Question: My organization would like to terminate an employee who is currently on FMLA leave, for reasons unrelated to the leave. Can we properly lay off this employee?
Wednesday, June 3, 2015
Answer: Under the Family and Medical Leave Act (“FMLA”), which applies to employers with 50 or more employees within 75 miles, covered employees who are on qualified leave have a right to be restored to the same, or an equivalent, position upon their return. 29 U.S.C. § 2614(a)(1) (1993). Further, employers cannot use the taking of FMLA leave as a negative factor in employment actions such as hiring, firing and promotions. See Wage and Hour Division, FMLA Fact Sheet, United States Department of Labor. However, this does not mean that an employee on FMLA leave is immune from termination. To the contrary, “an employee has no greater right to reinstatement or to other benefits and conditions of employment than if the employee had been continuously employed during the FMLA leave period.” 29 C.F.R. § 825.216.
Prior to terminating an employee on FMLA leave, an employer should consider carefully whether it would make the same termination decision even if the employee did not take leave. Indeed, if the termination is challenged, the burden will be on the employer to prove the leave was not a factor in the decision. Accordingly, it is critical to keep sufficient documentation that supports the business decisions behind the termination. Below we describe some of the applicable case law that provides employers with examples of situations that may provide legitimate, non-discriminatory reasons for terminating an employee on FMLA leave and underscores the importance of maintaining relevant documents.
First, a corporate re-organization may qualify as a legitimate reason for terminating an employee on FMLA leave, provided that the re-organization is not merely a reaction to the employee taking the leave. See Yashenko v. Harrah’s NC Casino Co., LLC, 446 F.3d 541, 551 (4th Cir. 2006). Nonetheless, an employer still must be sure to document the specific business decisions and determinations behind a corporate re-organization in order to avoid potential FMLA violations if an employee on leave is terminated. For instance, in Brenlla v. LaSorsa Buick Pontiac Chevrolet, Inc., No. 00 CIV. 5207 (JCF), 2002 WL 1059117, at *2 (S.D.N.Y. May 28, 2002), an employer decided to consolidate two job functions, thus eliminating the position of an employee on qualified FMLA leave, three days after the employee formally requested to return to full-time work. The employer argued that the “re-organization” was motivated by legitimate business concerns. Id. at *5. However, the jury found, and the court upheld, there was no documentation or evidence showing any financial benefits from the consolidation or indicating how the employer chose which employee was best suited for the new consolidated position. Id. Instead, the temporal proximity to the employee’s request to be reinstated and the employer’s decision to consolidate the positions supported the conclusion that the restructuring would not have taken place had the employee not taken FMLA leave.
Second, courts have held that an employee’s poor performance may qualify as a legitimate reason for terminating an employee on FMLA leave. See Mercer v. Arc of Prince Georges Cnty., Inc., 532 F. App’x 392 (4th Cir. 2013) (upholding employer’s decision to terminate an at-will employee for poor performance, despite the employee being on FMLA leave). Again, documentation, such as performance evaluations, likely will be instrumental to ensure that the termination is not viewed as retaliation for taking FMLA leave. See Richmond v. Oneok, Inc., 120 F.3d 205, 209 (10th Cir. 1997) (ruling that the employee was not terminated for taking FMLA leave, but instead was properly terminated based on 15 documented incidents of poor performance). A prudent employer should make sure that it has documentation indicating not only the reason for the termination, but also why the termination decision was not made prior to the employee’s request for (or taking of) FMLA leave. Even with sufficient documentation, some employers choose to wait until the employee returns to work before taking an adverse employment action to avoid the inference of retaliation. Simply waiting until an employee returns from work, however, will not insulate an employer from a retaliation claim. Even if performance issues are well-documented, an employer should evaluate the timing of a discharge of an employee who recently took FMLA leave to avoid even the appearance of a retaliatory motive. Of course, an employer might not become aware of performance issues or policy violations until the employee goes out on FMLA leave. In that situation, the employer likely will be within its right to terminate the employee immediately, even if the employer discovered the misconduct from the employee’s leave replacement. See Cracco v. Vitran Exp., Inc., 559 F.3d 625, 636 (7th Cir. 2009).
Furthermore, a reduction in force is likely to be considered a legitimate reason for terminating an employee on FMLA leave. If a reduction in force results in the termination of an entire department or division, depending on the size of those groups, it will usually be sufficient to show that there was no discriminatory animus to eliminate an employee on FMLA leave. However, if a reduction in force is employee-based, instead of group-based, the employer will want to produce significant documentation indicating how and why each laid off employee was chosen. See Roll v. Bowling Green Metalforming, LLC, 457 F. App’x 458, 460 (6th Cir. 2012) (upholding the termination of an employee on FMLA leave because the employer produced significant documentation that the employee’s selection for inclusion in the reduction in force was based on objective criteria including skills, performance and work history).
Overall, the main takeaway from the case law for employers is that it is not only important to have legitimate, nondiscriminatory business reasons for terminating an employee on FMLA leave, but employers should also make certain they have adequate documentation supporting the business decisions behind the termination.
Patrick Lamparello is a senior counsel in Proskauer’s labor and employment department in New York. Proskauer Associate Ian Plummer assisted with this article.
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