You Can Get Fired During FMLA Leave

Bob Gregg, partner in Boardman Law Firm, shares his roundup of diversity-related legal issues. He can be reached at rgregg@boardmanlawfirm.com.


The federal Family & Medical Leave Act (FMLA) grants eligible full-time employees (those who have worked at least 1,250 hours during a 12-month period) at organizations with a workforce of 50 or more up to 12 weeks of unpaid leave for the birth and care of a newborn; the adoption of a child or foster child; the care of an immediate family member with a serious health condition; and personal medical leave because of a serious health condition. Here are several recent FMLA legal decisions.

Layoff based on suspect performance evaluation violates FMLA. The law does not forbid layoff of an employee who is on FMLA leave if the action would have occurred anyway had he or she not been on leave. In Cutcher v. Kmart Corp. (6th Cir., 2010), an employee on FMLA was part of a workforce reduction. The company based layoffs on performance evaluations, and the plaintiff’s evaluation was low. However, the court found evidence to suspect the poor evaluation: It was done during the employee’s FMLA absence. She had received an “exceeds expectations” evaluation just four weeks earlier, immediately before taking FMLA leave. Obviously, her work performance could not deteriorate while she was not present at work, so the layoff evaluation seemed to be a pretext to eliminate a person who had exercised FMLA rights.

FMLA eligibility can start in the middle of unqualified leave. An employee with less than a year’s service was granted short-term medical leave for surgery. Medical complications resulted and the employee was unable to return to work when the short-term leave expired. The company then terminated the individual. But the employee passed the one-year mark during the original approved leave. In Porcillo v. Vistar Corp. (M.D. Fla., 2010), the court ruled that FMLA eligibility started at that pointand the employer should have given up to 12 more weeks of extended FMLA before discharge.

Walt Disney World is not the proper place for FMLA. Just days after being counseled for poor performance, a sheriff’s department investigator was diagnosed with cytomegalovirus and then stayed off work for several weeks. She spent two of those weeks entertaining a house guest and visiting Florida tourist attractions. Although the employee submitted several doctors’ notes during the leave, none verified that the condition was serious enough to render her unable to perform duties. She was subsequently terminated. In Gunzburger v. Sheriff of Broward County (11th Cir., 2010), the court found in favor of the defendant. The plaintiff’s activities were inconsistent with a need for FMLA leave, and she did not provide adequate medical proof of a serious condition.

For more on work/life issues, listen to our work/life webinar at www.BestPractices.DiversityInc.com.

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