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Terminating an Employee on FMLA

The  Family and Medical Leave Act provides 12 weeks of unpaid leave to eligible employees who work for a company that employs 50 or more people. The Act also provides certain protections for eligible employees who avail themselves of the leave. What happens though if the employee taking leave appears to be abusing the protections?  How does an employer protect the business against benefit exploitation?

The importance of transparency

There are limits to the protections that a worker on FMLA can count on, at least according to one Texas court. 

An employee who acknowledged she was not meeting her performance metrics was put on a performance improvement plan. Within days of that action, she reported by email to her boss that she had been to a doctor and would be filing for short-term disability and FMLA.

A few weeks later the woman's boss caught wind that the employee on leave had been spotted at a music concert, in the company's skybox seats. Puzzled, the employer followed up with a voice message to the woman asking for a meeting about the incident.

When the woman balked at that, the employer sent an email insisting she be in touch by a time later that day. When that deadline passed, the boss fired her citing poor performance, her attendance at the concert and her failure to respond when asked to meet. The woman sued, claiming violations of her FMLA status and retaliation.

The case didn't make it far. The judge dismissed the suit, saying that the employer's had a right to investigate the suspected abuse of benefits and that her refusal to respond to legitimate questions was reason enough for the employer to conclude the leave wasn't validly taken in the first place.

One expert's analysis

What employers can take away from this case, according to one observer, is the importance of communication and documentation. Employers have a right to ask workers on leave to respond to legitimate questions about their status and the right to let a worker go if he or she refuses to communicate. It is also important to note that the employer in this case properly documented performance problems before the employee requested FMLA leave and promptly noted its requests for communication and the employee's refusal to comply. 

Of course, each case is different and needs to be gauged on its individual merits. If you have concerns about an employee on FMLA leave or would like training on FMLA procedures to protect your business, contact Kisner Law Firm's experienced employment law attorneys. 

Source:, "Viewpoint: If an Employee Attends a Beyonce Concert While on FMLA Leave, Can She Be Terminated?," Jeff Nowak, Sept. 25, 2017

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