Termination while on FMLA leave

Okie Phil · March 2003

I have an employee who was given notice in January 2003 of termination in April 2003 due to funding loss for her position. She is now in legitimate need for back surgery (non-job-related). The recovery time will extend beyond the termination date as will her qualification for time off under the FMLA. Can I legally terminate as scheduled even though she will be on FMLA leave? The injury did not occur until more than a month after notice of termination was given.

LindaS · March 2003

Since she was notified prior to notifying you of her need for FMLA leave, there is nothing that provides her job protection now. She was aware that her job was being eliminated and as long as you have documentation supporting this, I see no reason to change your plans now.

Okie Phil · March 2003

LindaS - Thanks for the reply. I have the same interpretation of the situation. Just wanted to get another opinion. Everything I have read gave me the same conclusion.

Best always,

Okie Phil

Don D · March 2003

Even if she was NOT aware of her termination already, and even if you had not verbalized the company plans to downsize, she can be terminated. A reduction in force plan (which you describe) in place and identifiable to a hearing officer will establish that she was not terminated due to the event of FMLA nor in retaliation for having taken it.

Okie Phil · March 2003

DonD - Thanks for the reply. I came to the same conclusion, but I wanted to throw it out for other thoughts.

Best Always,

Okie Phil

jimlegal · March 2003

[font size="1" color="#FF0000"]LAST EDITED ON 03-13-03 AT 12:19PM (CST)[/font][p]Agree with DonD. Since you are conducting a RIF, which has nothing to do directly with the employee in question, you probably will be just fine. Wish you well with your situation.

Okie Phil · March 2003

jimlegal - Thanks for the reply. I came to the same conclusion, but I wanted to throw it out for other input.

Best Always,

Okie Phil

jimlegal · March 2003

I fully understand. Never hurts to get a second opinion.

Don D · March 2003

Sadly, very sadly (but unpreventable), the RIF we had two weeks ago tomorrow included three on FMLA. One guy still out with double knee surgery, one lady out on FMLA with a new baby, one guy recovering from bypass (born the exact same day I was). RIF is a universally non-discriminatory equalizer, when legally conceived and implemented.

Okie Phil · March 2003

Don D - You are certainly right about not wanting to RIF, but sometimes there is no choice.

Best always,

Okie Phil

Termination while on FMLA leave

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