- Employers may face difficult situations when they must terminate employees out on FMLA leave. In that situation, employers must demonstrate that the terminated employee would have been discharged even if the employee had not taken or requested his or her protected leave. In other words, employers must demonstrate a legitimate, nondiscriminatory business reason for terminating the employee that is unrelated to FMLA Leave.
- Employers should also be mindful of the timing of a termination. An employee discharged during qualified leave will have a stronger argument for retaliation than an employee who returned from leave six months prior to his or her discharge.
- Record keeping is paramount. An employer that decides to terminate an employee who requested FMLA leave for poor performance can readily defend its decision with a well-documented personnel file detailing the employee's poor performance and past disciplinary measures.
- The FMLA explicitly prohibits employers from retaliating against employees who take or request leave by taking official, adverse employment actions against employees (e.g., counting the employee's FMLA leave under a no-fault attendance policy).