Can an employer terminate an employee who is out on FMLA leave?

Author: Michael C. Jacobson, XpertHR Legal Editor

An employer may terminate an employee who is out on FMLA leave, but may not terminate the employee because of FMLA leave. Essentially, discharging an employee in this situation is only permissible if the employee would have been discharged anyway without his or her FMLA leave being a consideration. The fact that the employee is out on leave or has requested leave should not be a part of the employer's decision to terminate. Once the employee on FMLA leave is lawfully discharged, the employer's obligations to that employee end. It is no longer obligated to return the employee to his or her position (or a similar position) once the leave term ends.