Laying an employee off during FMLA leave

Laying an employee off during FMLA leave

On Behalf of | Feb 10, 2023 | Employment Law - Employer

During economic downturns that we see periodically in the United States, it sometimes, becomes a necessity for employers to lay off their most important assets, their employees. However, since these events are rarely planned, occasionally, some of these laid off employees may be on Family and Medical Leave Act leave. Is that legal?

FMLA leave is not an impenetrable shield

There is a pervasive belief that FMLA leave is somehow an impenetrable shield for Orlando, Florida, employees on it, but that is simply not the case. While it is true that it protects an employee’s job while they are on leave, it does not protect that job if that job no longer exists, even if it no longer exists for a reason unrelated to that FMLA leave.

Section 825.216(a)

The FMLA regulation that applies to these situations is Section 825.216(a). That section states that an employee on FMLA leave does not have any greater right to employment reinstatement than if that employee had been continuously employed during the FMLA leave period. In other words, if that employee would have been laid off during that FMLA leave period, had they not been on FMLA leave, they can be laid off during their FMLA leave period as well.

Employer burden of proof

FMLA Section 825.216(a) makes it clear though that the employer has the burden of proof to show that this fact is true. This means that the employer must be able to document or prove in some way that the employee would have been let go, or that they were laid off for some reason unrelated to their FMLA leave.

This burden of proof piece can be extremely important, should your laid off employee sue. The court will assume that the employee was laid off for an improper purpose because they were on FMLA leave at the time, and it is on you, the employer to prove that assumption incorrect. As such, you must have your documentation ready to go prior to laying that employee off.

An additional option is to provide an Orlando, Florida, severance package. In that severance package, you can include discrimination waivers and waivers of their right to sue based on FMLA, which can eliminate your litigation risk. Either way, it is always recommended that you consult with your Orlando, Florida, attorney to make sure that you do not run afoul of the law when laying off a person on FMLA leave.