When terminating employees out on Family and Medical Leave Act (FMLA) leave, 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 also should 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.
Recordkeeping is key. 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 taking official, adverse employment actions against an employee (for example, counting the employee's FMLA leave under a no-fault attendance policy) in retaliation for taking or requesting FMLA leave.
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