HR Management & Compliance

Think You Can’t Terminate an Employee on FMLA Leave? Think Again

One of the biggest misconceptions about the Family and Medical Leave Act (FMLA) is that it insulates employees from disciplinary proceedings while they are on FMLA-approved leave. Anyone who assumes that taking FMLA-protected leave provides some type of protection from all disciplinary actions would be wise to remember the age-old adage about assumptions, as one Illinois appellate court recently reminded us.


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Homeward Bound

“Evelyn” was a principal at an elementary school in Chicago. In December 2015, she was “reassigned to home” after the Chicago Board of Education’s Inspector General conducted an investigation into some of her actions at work. She continued to receive pay and benefits following her “reassignment,” pending further investigation. Two months after the reassignment to her “home office,” Evelyn applied for and was granted leave under the FMLA.

On April 1, 2016, while on FMLA-approved leave, Evelyn was informed that the board had approved formal disciplinary charges against her. The board asserted she had falsified student attendance records, which allowed the school to obtain a higher quality rating; instructed teachers to cheat on a corporate-sponsored contest by completing activities for students; improperly used sick time for vacation; and falsely reported vacation plans to her supervisor.

The board then sent Evelyn a written notice informing her that a dismissal hearing had been tentatively scheduled for April 29, 2016. Unless she sent a written request within 17 days to confirm she wanted to move forward with the dismissal hearing, then no hearing would be held, and she would be dismissed from her position. The board further stated that it was recommending suspension without pay but that she would be afforded a presuspension hearing, which would be arranged by the Office of Employee Engagement.

Dream On

Also on April 1, an employee from the Office of Employee Engagement contacted Evelyn to tell her the presuspension hearing was scheduled for April 8. Additionally, the board’s attorney, “Mitch,” e-mailed Evelyn’s attorney, “Bob,” to give him the hearing date. Bob immediately asked to move the April 8 hearing to another date. He also told Mitch that Evelyn was “on FMLA leave.” Mitch agreed to reschedule the hearing and asked Bob for dates that worked for him and Evelyn. However, Bob didn’t respond to that request for dates, so Mitch suggested rescheduling the presuspension hearing for April 15.

On April 6, Bob told Mitch that Evelyn would be on medical leave until May 25, 2016, and that “no . . . hearing can take place until her leave is over.” Mitch immediately responded and explained that the board doesn’t wait for an employee to return from leave before scheduling a presuspension hearing. He further told Bob that if he didn’t hear back by the next day, the hearing would be scheduled for April 15, 2016.

Bob suggested Mitch and the board were violating the FMLA by scheduling the hearing while Evelyn was on FMLA-approved leave. He further told Mitch that he wasn’t available on April 15 but that he would provide more information by April 8. That date came and went without Bob providing any additional information to the board about Evelyn’s availability.

Leave Me Alone

On May 25, the board passed a resolution terminating Evelyn’s employment, having received no written request from Evelyn or Bob for a dismissal hearing. On June 3, Bob received notice of the dismissal and responded by stating that he had provided “timely notice” to the board about Evelyn’s leave and her willingness to participate in a hearing once she returned.

Evelyn then filed a complaint in Illinois appellate court. On appeal, the court noted that Bob’s statement to the board that no presuspension or dismissal hearing could be scheduled while Evelyn was on FMLA leave wasn’t correct.

According to the court, the FMLA doesn’t prohibit an employer from dismissing an employee when reasons other than the fact that the employee was on FMLA leave support that action. The court noted numerous other examples in which courts have upheld the termination of employees who were on FMLA-approved leave when the reasons justified termination. For this reason (and others), the appellate court affirmed the board’s decision to dismiss Evelyn. Weaver v. Bd. of Ed. of the City of Chicago, No. 1-16-1764 (Apr. 11, 2017, 1st Dist. App. Ct.).

Liar, Liar

Taking disciplinary action against an employee who is on FMLA-approved leave isn’t without risks. Employees who are disciplined or terminated while on leave are more apt to think the adverse action resulted from the leave rather than the legitimate reason provided by the employer. This is especially true if the employee received a glowing performance review shortly before the adverse action.

One way employers can minimize that risk is to ensure managers and supervisors give honest performance reviews and impose corrective action for misconduct in real time so that any adverse action taken is connected with the performance or behavior issue rather than the employee’s protected leave. And as always, make sure the legitimate reasons for the adverse action are well documented. Otherwise, you may get taken to school.

This article was written by Kelly Smith-Haley of Fox, Swibel, Levin & Carroll, LLP, and an editor of the Illinois Employment Law Letter. She can be reached at