Employers have the right to terminate employees for nondiscriminatory reasons unrelated to the FMLA leave before, during or after the leave period. A thorough investigation into each termination is necessary, because the burden of proving it is not FMLA related is on the employer. If taken to court, employers must demonstrate the employee's termination would have occurred even without the FMLA leave.
Layoffs
When a company is forced to eliminate positions, any employee is susceptible to job cuts, even those who are on FMLA leave. However, it is the employer's burden to prove the employee would have been laid off if FMLA had not been taken. Any decision to terminate employment is legal if the decision is based on the organization's needs, and the skills and performance of the worker.
Misconduct
The key to terminating an employee for misconduct or performance is demonstrating why he was not terminated before taking FMLA leave. This proof, many times, comes when an employee is absent and someone else steps into his role. If another employee who exhibited the same behavior or performance issues would be terminated, it cannot be considered discrimination to terminate an employee before, during or after FMLA leave.
Documentation
If a case goes to court, additional proof will be required to show the employee was terminated for a legitimate reason, one which was unrelated to FMLA leave. This proof includes formal appraisal systems for performance-based terminations, or objective, written guidelines for how layoffs are determined.
