Can an employer terminate an employee for misconduct, fraud or abuse during FMLA leave?

Author: Michael C. Jacobson, XpertHR Legal Editor

Yes. The FMLA does not prevent an employer from enacting policies to guard against the abuse of FMLA leave by employees, so long as the policies do not reduce or limit the rights provided by the FMLA in any way. If an employee commits misconduct while out on FMLA leave, the employer may terminate that employee so long as the decision to terminate does not consider the fact of request for leave or the leave itself. Further, employers are permitted to craft policies to ensure employees do not commit fraud or abuse FMLA leave, and if the employer determines that the employee violated the policy during leave, the employer would be well within its rights to terminate the employee. As with all terminations for misconduct, the employer should strive to ensure that the employee has advance notice of the nature of misconduct, fraud or abuse and the associated penalties.