Can an employee be terminated while out on FMLA leave?
An employer may not take any adverse action against an employee for taking FMLA leave; however, a personnel action/decision that would have happened if the employee had continued to work may happen while the employee is on FMLA leave. For example, if an employer decides that a reduction-in-force is necessary and the employee taking FMLA leave legitimately falls within the group of employees to be laid off, the employee may be laid off even while taking FMLA leave. If the employee is laid off, the employer’s obligations under FMLA stop as of the effective date of the layoff. Also, if it is discovered while an employee is out on FMLA leave that the employee is guilty of a serious policy violation, the employer may terminate the employee while they are out on FMLA leave. The Office of Human Resources must be consulted before any adverse action is taken against an employee on FMLA leave.
Related Questions
- If an employer fails to tell an employee that leave has been designated as FMLA leave, can the employer count the leave against the employees FMLA leave entitlement?
- Under what circumstances is leave designated as FMLA leave and counted against the employee s total entitlement?
- Must the employee be in a permanent position with the State of Delaware to take family and medical leave (FMLA)?
