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Patrick, Esq.
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Legality of Terminating an Employee on Disability Leave

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I own a small private elementary school, which is open 12 months a year. I planned to terminate an hourly-paid full-time employee in July 2012 because of consistently poor performance and because enrollment and need for staff are very low in the summer months. I routinely terminate employees (including poorly-performing ones) by lay-off rather than firing them so that they might obtain unemployment benefits. The employee became seriously ill in early June, started disability leave in late June, and applied for state (CA) disability benefits. Her earned paid-time-off (vacation and sick leave) balance is negative and will not become positive until late August if she remains my employee. Thus, she has not receive wages from me since she went on leave. According to "Employment and Labor Update-April 2009" (Foret), an employer can avoid claims of discrimination or interference with individual right under FMLA if employer can show that employee would have been terminated even if the employee had not taken medical leave. Please verify this rule. I would like to know if, under the conditions I described above and the Foret statement, terminating the employee is legal and how I could prove that I would have terminated the employee even if she did not become ill. Would a better altenative be to lay her off because of reduced staff needs rather than poor performance? DL
Hello and thank you for entrusting me to answer your question. My goal is to answer your question completely and thoroughly and to provide excellent service.

The text of the FMLA prohibits discrimination because of the exercise of FMLA rights. It does not provide absolute job protection, and in order for a plaintiff to have a valid cause of action for wrongful termination, he or she must demonstrate by a preponderance of the evidence a "causal link" between their FMLA leave and termination. See Richardson v. Monitronics International, Inc. 434 F.3d 327 (2005).

You can read the Richardson opinion here for a more detailed explanation of the prima facia elements of an FMLA claim for wrongful termination:

If an employer has documentation of an employee's performance issues, even if the employee was never formally warned or reprimanded for misconduct, that documentation may be sufficient to rebut allegations that the employee's FMLA leave was a factor in their termination. The key is that the performance issues were documented. Courts will be very skeptical of an employer who conveniently "claims" that an employee on FMLA leave was a poor worker, without proof, and uses that as a justification to let them go.

One problem that potentially arises when firing an employee for performance issues while on FMLA leave is that the employer must be able to explain why the employee was not terminated prior to her taking leave. Why as the employer did you wait until the employee was on FMLA leave to fire her for pre-existing performance deficiencies? Sometimes more than others it is hard to come up with a good explanation for this.

For this reason, it is often better for an employer to lay off an employee on FMLA leave for financial reasons ("reduced staff needs") as such justification does not require an explanation of the delay in deciding to let them go "now." Provided an employer can demonstrate an actual financial need to reduce staff, this is one of the most sure ways to lawfully terminate an employee on FMLA leave.

I sincerely XXXXX XXXXX this information helps you and I wish you the best.

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Finally, please bear in mind that none of the above constitutes legal advice nor is any attorney client relationship created between us.

Thank you and very kindest regards.

Customer: replied 4 years ago.

Thank you for informing me of my legal options regarding the employee. Why didn't I fire the employee before she took leave? She took leave before I could fire her and did not notify me that she was taking leave...she simply stopped coming to work. I did not know why until I received notice from her doctor.


Because our summer enrollment is about 50 as opposed to approximately 250 students during the regular school year, reducing staff during the summer is critical; therefore, lay-offs are routine.


However, my concern about the employee in question is whether it is legal to lay her off while she is on medical leave. Your response suggests that it is legal. I hope that your are correct because that is what I will do.



Thank you very much for your reply. It is absolutely legal to lay off an employee while he or she is on medical leave, provided the reason for the layoff is financial in nature or due to performance deficiencies. The Richardson case I cited above makes very clear that an employee will only have a cause of action for wrongful termination if they can prove a causal link between being terminated and their FMLA leave. If the reason for their termination is economic/financial, there would be no causal link, typically speaking.

Of course, baseless lawsuits are brought from time to time, and there is no safeguard against that, but if a lawsuit were to be brought on these facts it would be swiftly dismissed without evidence of the "causal link" described above.

Again, I sincerely XXXXX XXXXX this information helps you and I wish you the best. If I have answered your question, I would be very grateful for a positive rating of my service so that I may receive credit for assisting you.
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