How to fire an employee right after his FMLA expires . . . and win the retaliation lawsuit.

Hey, don’t judge me. You’re just as heartless reading this as I am writing it.

The Family and Medical Leave Act gives eligible employees the right to take twelve weeks of job leave because of a serious health condition.” When his leave ends, an employer must reinstate an employee to his original job (or an equivalent).

Some of you have fantasized concerns about firing employees who don’t return immediately after leave entitlement expires.

I get it. You’re a wimp risk averse.

But remember that the FMLA is not an accommodation statute like the Americans with Disabilities Act. The FMLA is a leave statute. An employer may seek a fitness-for-duty certification that the employee is able to resume work and need not reinstate (or restore to another position) an employee returning from FMLA leave who cannot perform the essential functions of his job due to a particular health condition that caused the employee’s need for FMLA leave.

Let’s look at what happened down in Georgia recently. (Try this link instead.)

The defendant had a policy requiring employees returning from FMLA leave to be able to perform their essential job functions without restrictions. That’s completely legal. Indeed, the FMLA allows employers to terminate an employee returning from leave if the employee cannot perform the essential functions of their position without accommodation.

A week had passed after the plaintiff’s FMLA expired. He provided a certification that said he could return to work the following month and perform the job’s essential functions without accommodation. That’s not good enough under the FMLA. So the defendant did not retaliate by firing him.

Now, some of you may be thinking, Eric, what about the ADA?

You’re not wrong. The FMLA reminds us that “the employer’s obligations may…be governed by the [ADA].” The ADA requires reasonable accommodations to make it possible for an employee with a disability to enjoy equal benefits and privileges of employment.

The key here is that the employee must have a disability.

In the Georgia case, the plaintiff claimed he had a foot condition that made him unable to stand for long periods. But the foot problem apparently impacted the plaintiff for only two months. That is, the plaintiff began his FMLA leave in September, ended when his leave was exhausted in October (he had used FMLA earlier in the year), and his physician cleared him to work without restrictions in November 2019. Therefore, the court concluded that no reasonable jury could say the plaintiff had a disability — given its limited duration and severity.

Of course, there may be other situations where the employee has an actual disability. Those may involve a duty to accommodate or at least have a good faith interactive dialogue about it. Plus, your mileage may also vary under state and local law. Terminating an employee with a disability after FMLA ends because they can’t perform the job’s essential functions without accommodation is usually a good way to get sued and lose.

But this post focused on FMLA retaliation. FMLA retaliation requires animus. And it’s axiomatic then that an employer cannot display “animus” towards the FMLA by doing what the FMLA allows it to do. If an employee cannot return to work and satisfy the requirements of the FMLA when their leave is exhausted, the FMLA allows you to end their employment.