Employment Law article by Lauren M. Law, Esquire

One of the most common misconceptions about the Family and Medical Leave Act (“FMLA”) is that an employer cannot terminate an employee while the employee is on protected leave. However, the more accurate answer is that an employee may be terminated while on FMLA leave, but not because the employee requested or took protected leave. Whether a particular termination is lawful depends on the reason for the decision and the facts surrounding it.

At Lamb McErlane PC, our employment attorneys represent both employees and employers throughout Pennsylvania in matters involving protected leave, layoffs, discrimination matters, and employment disputes. We help our clients understand their rights, evaluate risks, and negotiate practical solutions for workplace issues.

What the FMLA Protects 

The FMLA protects eligible employees from interference with their right to take protected leave and from retaliation for exercising those rights. For example, an employer generally cannot discourage an eligible employee from requesting leave, deny leave to which the employee is entitled, or penalize the employee for taking it.

However, the FMLA does not prevent an employer from making legitimate employment decisions that are unrelated to an employee’s use of leave. In my experience, the key question is usually not whether an employer can terminate an employee on FMLA leave, but whether the employer can show that it would have made the same decision even if the employee had never requested or taken leave.

When a Termination May Be Lawful

An employer may still have grounds to terminate an employee because of documented performance issues, misconduct, a reduction in force, or the elimination of a position. The fact that the employee happens to be on FMLA leave does not automatically shield the employee from those decisions.

For example, if an employer discovers serious misconduct while an employee is on leave, the employer is not necessarily required to wait until the employee returns before taking action. Similarly, an employee on FMLA leave may be included in a legitimate reduction in force if the employee would have been selected for termination regardless of the leave.

Why Timing Matters

When an employee is terminated shortly after requesting or taking FMLA leave, it is not uncommon for the employee to question whether the leave played a role in the decision. That timing alone does not establish a legal claim, but it is often one of several factors that should be evaluated.

The timing may be particularly concerning when the employee had no documented performance issues before requesting leave or when the employer’s attitude toward the employee changed after learning about the need for leave. Comments criticizing the timing or inconvenience of the leave may also become relevant if the termination is later challenged.

Documentation and Consistency Matter Too

Employers should look beyond the termination decision itself. They should consider whether performance concerns were documented before the employee requested leave, whether similarly situated employees were treated consistently, and whether the stated reason for termination remained the same throughout the process.

A lack of documentation does not automatically make a termination unlawful, just as documentation does not automatically make it lawful. However, records created at the time concerns arose are generally more persuasive than explanations developed after a dispute begins. If the termination is later challenged, the process leading to the decision may become as important as the decision itself.

What Employees Should Consider

Employees should not assume that every termination during or after FMLA leave is unlawful. Employers retain the right to address legitimate performance issues and workplace misconduct, even when an employee is on protected leave.

At the same time, employees should consider whether the employer’s explanation is consistent with their employment history and how other employees were treated. A sudden negative review, an unexplained change in expectations, shifting reasons for termination, or comments about the employee’s leave may warrant a closer review. Whether a termination violates the FMLA depends on the specific facts surrounding the decision.

Review the Facts Early 

As with many employment matters, the answer is rarely straightforward. Reviewing the facts before a termination decision is made, or soon after a termination occurs, can help identify potential legal issues before they lead to costly litigation.

For employers, an early review may reveal gaps in documentation, inconsistent treatment, or problems with how the decision has been communicated. For employees, a prompt review can help preserve relevant documents, identify potential claims, and ensure that applicable filing deadlines are not missed.

*This alert is for educational purposes only and is not intended to be legal advice.

 How I Can Help

 Whether I am advising an employer or an employee, my first step is to evaluate the facts surrounding the employment decision. That includes looking beyond the termination notice to understand what occurred before the employee requested leave, how the decision was made, and whether the employer’s stated reason is supported by the available records.

If you have questions about FMLA leave or another employment-related dispute, contact Lamb McErlane PC today to schedule a consultation and discuss how we may be able to help protect your interests. If you have any questions or if we may be of further assistance regarding workplace matters, please feel free to contact Lauren M. Law directly.

Lauren M. Law is a Senior Associate at Lamb McErlane PC. She focuses her practice on employment law, as well as complex civil and business litigation. Lauren can be reached by email at llaw@lambmcerlane.com or by phone at 267-388-2886.