The Family Medical Leave Act is nothing new, and neither are the difficulties, issues and paperwork that comes with it.  Most likely, at one point or another, the FMLA has caused a problem for you and your company.  Maybe you had questions about paying an exempt employee when they take intermittent FMLA leave after using up all of their vacation and sick leave.  Or maybe you had a “difficult” employee take FMLA leave just as you were getting ready to terminate them, leading to questions about when and how to go about the termination (or maybe you just let them go and are currently looking down the barrel of a retaliation lawsuit).

The FMLA forbids an employer from retaliating against employees that takes FMLA leave.  It seems fairly simple that you cannot terminate an employee because your employee took FMLA leave to take care of a sick child, undergo back surgery or have a baby.  Unfortunately, things are not always that cut and dry.  And frankly, with the FMLA, they are almost never cut and dry.

The situation is much more difficult where your employee takes three months off for surgery and returns without incident.  However, a few months later you determine that a few employees need to be laid-off.  Using some sort of performance metric, you determine that the employee who took the FMLA leave is at or near the bottom of the list.

Now if this employee is typically underperforming or problematic (and you have documentation to that effect), then laying off the employee should not expose you to liability.  You probably are not that lucky, so we will assume that the employee who took FMLA leave is a middle-of-the-road performer in past years and it appears that he or she only slipped to the bottom of the performance list because they missed three months of work.

If you lay-off this employee, you may be exposing your business to an FMLA retaliation lawsuit.  The employee will allege that, while you claim the layoff was for performance reasons (with documentation!), the only reason for the performance issues was the valid FMLA leave.

Dealing with the FMLA is almost always difficult, and potential retaliation lawsuits only add another wrinkle for human resources to consider.  As a result, its almost always a good idea to sit down with legal counsel if you are considering the termination or layoff of any employee who has recently taken FMLA leave.

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