How to Terminate an Employee Out on FMLA Leave
- Step 1: Articulate the Reason for Termination
- Performance Issues
- Reduction in Force (RIF)
- FMLA Fraud or Abuse
- Step 2: Identify the Decision-Maker
- Step 3: Critically Analyze the Reason(s) for Termination
- Is there contemporaneous documentation to support the performance deficiencies that are cited as the reason for the termination?
- Have the performance deficiencies been communicated in the past to the employee?
- Are the identified performance deficiencies consistent with the performance history of the employee?
- Step 4: Look for Discrimination
- Step 5: Make the Decision to Terminate ASAP
- Was the decision made before notice of the FMLA leave?
- Was the termination decision communicated to the employee prior to the notice of FMLA leave?
- Is there a reason why the termination must become effective while the employee is out on leave?
- Additional Considerations: Termination Risks
- Entitlement/Interference Claims
- Retaliation/Discrimination Claims
- Potential Damages
- Additional Resources
Author: Michael E. Barnsback
There are few tasks as potentially problematic for an HR professional as terminating an employee who is out on Family and Medical Leave Act (FMLA) leave. Almost invariably, the perception on the part of the terminated employee is going to be that he or she was terminated because of the FMLA leave request or leave term. An employer that takes no action to correct that perception can expect a lawsuit.