Yes, it’s true: You can legally fire an employee who’s out on FMLA leave. But the process isn’t easy.
Courts tend to look suspiciously at terminations that occur just before, during and immediately after an employee takes FMLA leave. The gut reaction is: The employee was terminated because he or she wanted FMLA leave.
It’s overcoming that knee-jerk reaction that makes winning FMLA retaliation or interference lawsuits so difficult. But it can be done — if you have the proper documentation showing one thing: The employee would’ve been fired whether or not he or she requested FMLA leave.
For a good example of the kind of documentation you’d need to survive such a lawsuit unscathed, let’s look at the recent case of Grimes v. Fox & Hound Restaurant Group.
Fired in the midst of FMLA leave
Don Grimes was the general manager at the Fox & Hound Restaurant in Wichita, KS.
Grimes was also diabetic, and in January of 2012 he requested FMLA leave to recover from a diabetic foot ulcer. His leave was approved by Fox & Hound.
Shortly after taking FMLA leave, Grimes was replaced in the restaurant and terminated.
As a result, he sued for FMLA retaliation and interference.
At face value, it looks like he’s got a solid case. But the company was successfully able to defend its decision to terminate in court.
Wheels of termination were in motion
In the year prior to his FMLA leave request, Grimes had piled up numerous sub-par performance evaluations, customer reviews and secret shopper evaluations.
In fact, things had gotten so bad that his position was placed on Fox & Hound’s Manager Needs Report, which is an internal document that lists all management positions the company considers open and is actively looking to fill.
Grimes’ position first appeared on the report in June of 2011, well before his FMLA leave request.
The company had actually hired his replacement in December of 2011. But the replacement needed to be trained before taking over for Grimes. When that training was completed the following March, Grimes was officially terminated.
So Fox & Hound had a clear paper trail to back up its claims that Grimes’ termination was in no way motivated by his FMLA request.
The key to this case, however, was the fact that Fox & Hound had already documented the fact that it planned to replace Grimes prior to his leave request. The paper trail of performance evaluations alone probably wouldn’t have been enough to get the company off the hook.
One thing the court was careful to point out that employers must always keep in mind about cases like this:
“The defendant-employer has the burden of demonstrating that an employee, laid off during FMLA leave, would have been dismissed regardless of the employee’s request for, or taking of, FMLA leave.”
In this case, it said Fox & Hound provided “overwhelming, uncontroverted evidence” that it terminated Grimes for reasons that weren’t related to his FMLA request.