Employee on FMLA Leave May Be Terminated as Part of RIF
March 1, 2000
Mark G. Alexander- Jacksonville
Termination of an employee who is on a leave of absence under the Family and
Medical Leave Act is permitted, says the Eleventh Circuit in O'Connor v. PCA Family
Health Plan (11th Cir. 2000). Dealing with the issue for the first time, the
Eleventh Circuit (Florida, Georgia and Alabama) held that an employer may deny
reinstatement to an employee on FMLA leave if the employer can show that it
"would have discharged the employee even had she not been on FMLA
leave." In this case the court found that the employer's decision to
terminate the employee was unrelated to her FMLA leave, and therefore, the
termination was permitted.
The employee was an account executive in the employer's Boca Raton, Florida,
office. She elected to take a leave of absence under the FMLA as a result of the
birth of her child. At about the same time the employer decided to implement a
"reduction in force" throughout the company, and the plaintiff was one
of the employees included in the group for termination. The plaintiff was
terminated as part of the implementation of the reduction in force even though
she was on FMLA leave of absence.
The plaintiff relied on the Seventh Circuit's opinion in Diaz v. Fort
Wayne Foundry (7th Cir. 1997) (Illinois, Indiana and Wisconsin) to support
her argument that she had an automatic right to reinstatement following her FMLA
leave of absence, and that any interference with this right constituted an
actionable violation of the FMLA. See also Hodgens v. General Dynamics (1st
Cir. 1998) (Maine, Massachusetts, New Hampshire and Rhode Island). However, the
Eleventh Circuit rejected this argument and held that the employee on FMLA leave
of absence has no greater right to reinstatement or to any other benefit than if
the employee had been continuously employed during the FMLA leave period.
The court held that termination of the employee is permitted under the FMLA
if employer can show that the employee otherwise would not have been employed at
the time employee requested reinstatement.The O'Connor case was decided
January 18, 2000, and represents the first time the Eleventh Circuit has faced
this issue under the FMLA.
Although this case is good news for employers, there are many risks involved
in the termination of an employee on FMLA leave of absence. In O'Connor the
plaintiff did not challenge the underlying conclusion that the plaintiff would
have been included in the reduction in force regardless of the FMLA leave. The
plaintiff in O'Connor elected to argue that her FMLA leave gave her
protection from the treatment she would receive if she were not on leave. The
court rejected this argument and held the employee does not enjoy protected
status different from the status she enjoyed when she was not on leave.
However, employers who terminate employees on FMLA leave continue to run the
risk that the employee will argue that she was terminated because she elected
FMLA leave and would not have been terminated otherwise. Such arguments, if
proven, continue to be actionable violations of the FMLA.
For more information please call Mark G. Alexander at 1-888-688-8500.