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.