When should an employer terminate an employee who is out on FMLA leave?

Author: Michael C. Jacobson, XpertHR Legal Editor

If an employee must be terminated while out on FMLA leave, best practice is to terminate the employee as quickly as possible after the incident or incidents which gave rise to the decision to terminate. Employers should not use leave or request for leave as part of their rationale for terminating an employee. Instead, lawful terminations of employees out on FMLA leave must be based on factors wholly unrelated to the leave or request for leave. The longer an employer waits between the incident or incidents that gave rise to the decision to terminate and the actual termination, the harder it will be for the employer to demonstrate that the leave term was not a contributing factor to the decision.