One of the questions that clients ask me most often is, “________ is out on a medical/pregnancy leave (or just returned); can we fire him/her?”
My response, always: “Why?”
There are several reasons why you might need to fire an employee who is absent from work on, or just returned from, an otherwise FMLA or ADA protected leave.
- While picking up the absent employee’s work, you discover he or she was not doing his or her job.
- You uncover misconduct committed by the employee (fraud, theft, etc.).
- You need to reduce headcount or eliminate the employee’s position.
Thus, my answer is always the same — “Would you have fired or RIFed the employee absent the otherwise protected leave of absence?” If so, then you can go ahead with the termination, understanding that a large amount of legal risk does exist. It does not mean that the employee is bulletproof, but it does mean that you need to tread carefully, make sure everything is well documented, confirm consistent treatment, and understand you will need to pay severance in exchange for a release or face the prospect of a lawsuit.
Case in point: Nieves v. Envoy Air, Inc. (6th Cir. 1/14/19).
Nieves worked as a gate agent for an affiliate of American Airlines for 19 years. His employer permits employees to fly for free, but prohibits employees from sharing their free travel benefits with anyone other than spouses or children. In April 2015, the employer randomly selected Nieves for an audit of its free travel program. In the middle of the audit, Nieves went out on an FMLA leave of absence. Upon his return to work, the audit continued, ultimately uncovering that Nieves had shared his travel benefit with ineligible individuals (his mother’s boyfriend, and non-children). Accordingly, the employer fired Nieves, just as it did with anyone it determined violate the free travel program.
Nieves sued, claiming that his termination, less than six weeks after he returned from FMLA leave, was in retaliation for the FMLA leave. The court disagreed:
Nieves argues that his travel log was given heightened scrutiny and that this raises an inference of a causal connection. However, nothing in the record supports that he was subject to increased scrutiny beyond the ordinary inquiry that follows a travel audit within the company. Envoy maintains that Nieves was flagged for an audit due to the number of entries on his travel log. According to American and its Matrix, an employee’s abuse of travel privileges is a terminable offense, regardless of whether the ineligible individual is currently listed or was in the past.
If you are going to fire someone during, or on the heels of, an FMLA or ADA leave of absence, you need a good reason, consistency, and the support of solid documentation. And even in that case, you face the choice of likely litigation, or a separation agreement with a payment of severance in exchange for a release. In all but the most egregious of terminations, I recommend the latter because the risk of the former is so great.