Firing while on FMLA

sunshine state

Does anyone have the policy for firing an employee while on FLMA leave. This would be a discipliary case where the employee will be fired when they return. This involved money that we have to pay back to the government plus fines. Thanks for your help.

POPEYE

First of all I would recommend you seek legal advice as this can definitely turn into a retaliation situation if not handled properly.

I don't know that there is a specific policy 100% dedicated to "firing" while on leave. However, Section 825.216 gives some guidance on when an EE is not going to be reinstated after leave. The key phrase here is, "The employer must be able to show that an employee would not otherwise have been employed at the time reinstatement is requested in order to deny restoration to employment."

Make sure you have extremely good documentation in place and I would again highly recommend that you seek legal advice.

Down_the_Middle

I concur w/Popeye...... There is no such "policy" as you suggest. While FMLA was never intended to protect someone from this type of situation, the burden falls on the employer to have sufficient investigation & documentation to support the discharge decision. Get your ducks in a row to support your desired decision and involve your legal counsel. Depending on the egregiousness of the infraction you might decide to proceed b/4 FMLA expires and that may be entirely appropriate. Might start thinking about whether the individual will be permitted to resign and avoid a discharge for gross midconduct which should impact COBRA, etc....

LarryC

Good advice so far. A while back I fired someone while on FMLA. It seems that another employee, while performing the duties of the absent employee, found some improper goings-on that rose to the level of terminable. We didn't hesitate. Her weak argument that the FMLA caused her demise didn't fly.