Can You Terminate an Employee After 12 Weeks of Fmla
past Renee Mielnicki, Esq.
As Employment Counsel, I get many calls asking for guidance regarding terminating employees who are either out on a medical get out of absenteeism or shortly after they accept returned therefrom. During the call, I often get asked, "Why does any of this matter? This is an at-will state. I should be able to do whatsoever I want." Well, for well-nigh states, unless the employer has a unionized workforce or an employment contract with the employee, that is technically true. However, employers however cannot terminate an at-will employee for a retaliatory or discriminatory reason. If they exercise, the employee can file a lawsuit against the employer. Let's examine the situations where these bug may arise.
The Family unit Medical Exit Human action: The Family Medical Leave Act ("FMLA") is a federal law that applies to employers that accept 50 or more employees. Under this law, eligible employees are immune to take up to 12 weeks of unpaid leave in a 12 month period for certain qualifying reasons, including a serious health status. Employers frequently believe that an employee on FMLA can never be terminated since they have a legal right to be reinstated to their same or equivalent job at the finish of leave. While information technology is true that this is a job-protected leave, information technology is also true that employees on FMLA may yet exist terminated while on FMLA if the reason is not in retaliation for taking FMLA leave and is non-discriminatory. In other words, if the employer can testify that the decision to terminate is unrelated to the FMLA get out, it can be done.
However, documentation and timing mean everything when making such a conclusion. Unfortunately, a decision to terminate an employee shortly after they have requested or returned from FMLA leave gives a stiff presumption in the employee's favor that the termination or lay off was due only to the employee's conclusion to practice his or her FMLA rights. For example, an employee who has repeated instances of misconduct that occurred months ago may exist able to establish a violation of his or her FMLA rights if the employer decided to terminate the employee for that misconduct only ii days afterward the employee goes out on FMLA. Why? Because the filibuster in the determination to stop until the employee exercised FMLA rights creates a stiff presumption that the decision to terminate was due to taking FMLA, not the misconduct. In this state of affairs, not only would the timing of the decision be important, only proper documentation of the prior misconduct would be too to show a valid business reason for the termination that was not retaliatory or discriminatory. Unfortunately, the burden to show that a termination determination was not retaliatory and non-discriminatory is e'er on the employer.
One situations in which an employer may be able to show a legitimate business reason for the termination would be if the employer discovered significant misconduct while the employee is out on go out. For example, learning the employee committed some blazon of 
theft or other dishonest human activity in the workplace later on the employee went out on get out. However, proper documentation of these facts would be disquisitional to show not but that the act occurred prior to FMLA leave, simply that the employer had no knowledge of the act until later the leave occurred and then acted promptly. Equally far equally a layoff, the employer would again accept the burden to show that the person would have been selected regardless of taking FMLA leave. This would be hard to testify if the just employee selected was the one out on FMLA leave. A all-time do in this instance would be to include the employee in a group or to eliminate their entire section.
The Americans with Disabilities Human action: The Americans with Disabilities Human action ("ADA") is a federal law that applies to employers that accept fifteen or more employees. This law offers a myriad of legal rights for those that run into the definition of disabled under the Human activity. One correct that about employers are not aware of is the employee's right to a medical leave of absence equally a reasonable accommodation. Most employers are under the impression that they can automatically terminate an employee who fails to return after the expiration of FMLA leave because they are still medically unable to work. Unfortunately, the ADA can both extend the time for an employee to take medical leave afterwards the expiration of FMLA as well as provide employees not eligible for FMLA with a leave of absenteeism for health reasons. Like those on FMLA, employees on a leave of absenteeism nether the ADA also accept the right to reinstatement to their previous job, an equivalent position or a vacant job for which they are qualified, unless the employer can show that property the job open is an undue burden on the performance of its business. An undue brunt essentially means that holding the job open for the employee to render would cause the employer a significant difficulty or expense. This is a fact specific analysis that requires an examination of many factors including, but non limited to, the size of the employer, the number and location of its facilities, the toll of the accommodation, its financial resources, the bear upon the accommodation would have on its employees and the employer'southward ability to comport its business organization. Unfortunately, the larger the employer and more than resources it has, the longer it may have to agree a task open for an employee while out on leave under the ADA. Courts take deemed varying amounts of leave as reasonable under the ADA, fifty-fifty up to 15 to months, depending on the fact pattern.
Bated from the undue burden analysis, if terminating an employee for misconduct or due to a layoff, proper documentation and timing are again critical. To avert the termination existence categorized as retaliatory or discriminatory, employers must be able to demonstrate a legitimate business organization reason for such a conclusion and that the decision was made independent of the employee'southward exercise of their rights under the ADA. Again, this brunt remains that of the employer's.
Worker'southward Compensation: Most employers are not aware that employees on worker's compensation do not take reinstatement rights under near state worker'due south compensation laws. In Pennsylvania, employers can discipline or stop an employee either on worker's bounty leave or shortly after returning therefrom if information technology can show that the determination was not retaliatory and was not related to the filing of the worker's compensation claim. Otherwise, the employee would accept a claim for wrongful discharge nether land law against the employer. Of course, just like the FMLA and the ADA, this burden is exactly the challenge. Once more, timing and proper documentation are everything. In addition, employees on worker's bounty get out may besides qualify for leave under the ADA and/or FMLA. Therefore, the leave may and then become chore protected and the analyses and considerations mentioned to a higher place would also need to be considered. One example where an employer may exist able to successfully show that termination was unrelated to the worker's compensation claim would be where an employee engages in misconduct that would warrant termination for whatever employee under the employer'southward policy, such as a theft, workplace violence or sexual harassment. Again, proper documentation and acting in a timely manner would be key.
Curt-term and Long-Term Disability: Almost employers take either a short-term and/or a long-term disability policy for employees that sustain non-work related injuries or illnesses. These leaves of absenteeism, in and of themselves, are not job protected. However, in some cases, the employee may authorize for leave nether the FMLA and/or the ADA. If such is the case, the rules set forth higher up regarding those statutes will apply to any termination decision.
As you tin see, a conclusion to terminate any employee while on a medical get out of absence is a complex one that can involve the interplay of multiple laws and consideration of a myriad of dissimilar facts and circumstances. Employers who wish to terminate or lay off an employee while on a medical leave of absence, or shortly after returning therefrom, should e'er consult with an experienced Human being Resource professional or Employment Chaser before deciding to do then.
If you are an employer with questions near leaves of absenteeism, terminations or any other human resources problems, please send an email to hrhelpline@eastcoastrm.com. We volition exist happy to help! Delight annotation that our helpline is for employers but. If you are an private with questions almost an employment issue, delight contact an chaser for legal advice.
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Source: https://eastcoastriskmanagement.com/fire-employee-leave-read-this/
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