FMLA LEAVE DOES NOT PROHIBIT DISCHARGE FOR MISCONDUCT

The federal appeals court covering the Midwestern USA has issued an opinion affirming that an employee can be fired for misconduct even though he/she is on FMLA leave at the same time.  The case involved an employer who discovered evidence of serious misconduct (e.g. unauthorized purchases and failure to perform work duties) by a company officer.  The discovery was made while the employee was out on FMLA leave and the company decided to discharge him immediately rather than wait to restore the employee from his FMLA leave first.  The court ruled that the employee’s right of restoration was only as great as his right would be while he was not on leave. Because the employer was able to convince the court that the termination would have occurred regardless of the employee’s leave status, there was no FMLA violation.  Note that the FMLA regulations indicate the same is true for layoffs and other types of terminations, provided the employer can show they would have occurred regardless of leave status.

Acknowledgement and thanks to Mike O’Brien (writer) and Kriss Hess (sender) at the law firm Jones Waldo in Salt Lake City, UT