One of the most common misperceptions I’ve encountered with respect to the FMLA is the notion that an employee cannot be fired while they are on FMLA leave. That is simply not an accurate statement. The FMLA protects employees from being terminated because they exercised their rights under the FMLA, which means it is unlawful for an employer to terminate an employee because they missed work due to an FMLA-qualifying condition. However, the FMLA-related absences have to constitute the motivation for the termination.
The easiest way to explain this is through the following example: Employee A is off of work on FMLA leave caused by a back injury that required surgery. While on FMLA leave, Employee A’s employer learns that $100,000.00 is missing from the company’s general operating account. After conducting an investigation, the employer determines that Employee A transferred $100,000.00 over the course of the past five years from the company’s general operating account to an account in the name of Employee A and their spouse. Regardless of the fact that Employee A is on FMLA leave, the employer can lawfully decide to terminate Employee A’s employment due to theft.
Here’s another example: While Employee B is off on FMLA leave do to the recent birth of a child, Employee B’s company decides to close the office where Employee B works and to lay off all of the employees at that location effective immediately. Would Employee B’s employer be required to keep the facility open so Employee B could return to work at the conclusion of her FMLA leave? No. Because the decision to close the facility and lay off all of the workers was not done because Employee B was on FMLA leave, the employer would be within its rights to terminate Employee B’s employment.
Although the above examples are extreme, the point they illustrate is basic. Employees who take FMLA leave have no greater rights to their job than do any other employees. If events transpire that justify the termination of an employee’s employment, an employer is free to go through with the termination regardless of whether the employee is off work on an FMLA leave or recently returned to work following an FMLA leave.