Can you fire employees on leave? The Family Medical Leave Act (FMLA) is a federal law that applies to many businesses. The FMLA leave law mandates certain minimum requirements and rights for employees who take unpaid leave.
The FMLA only applies to certain businesses -- and to certain leaves.
First and foremost, you should find out if the FMLA applies to you.
Typically, the FMLA does not apply to all employers or employees. The FMLA only applies to those employers who have more than 50 employees. Businesses must have had 50 employees for at least the past 20 weeks.
Furthermore, the FMLA only applies to certain employees. The worker must have been with the employer for a minimum of 12 months. These months do not need to be consecutive. But they must have worked a minimum of 1,250 hours in the last twelve months.
Employees can take the leave if they:
- Need to attend to a serious health condition.
- Need to help care for an immediate family member who has a serious health condition.
- Gave birth.
- Adopted a child.
- Need to care for a newborn or a newly adopted child.
So can you dismiss an employee who needs to take a valid FMLA leave? You could, but you may be violating the law. You might also end up on the other side of a lawsuit. Employers typically need to reinstate employees upon their return from FMLA leave. They also need to give employees the ability to "catch up" on licenses and educational requirements for the position.
There are some cases in which you can fire an employee on leave, for example:
- If the employee tells you she is not coming back to work.
- If the employee would have been fired anyway.
- If the employee is a "key" employee -- meaning, she is one of the top 10% highest-paid workers at your business.
If you need to fire an employee on FMLA leave for performance-based reasons, keep track of all the related documents. You may also want to consult an employment attorney about relevant state or FMLA leave law. There is a risk you could incur liability.
- Rights and Responsibilities Under the FMLA (FindLaw)
- FMLA Notice Requirements - Employer (FindLaw's Free Enterprise)
- Firing Employees and the Family Medical Leave Act (FindLaw's Free Enterprise)
- FMLA Medical Leave: Do You Have to Reinstate Workers? (FindLaw's Free Enterprise)