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September 14, 2001
Ruling Makes FMLA Firings Easier
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loyers have often fretted when presented with a situation where an employee deserves to be fired but happens to be taking leave under the Family and Medical Leave Act.

The dilemma is that the FMLA requires restoring an employee to his or her job after leave and prohibits interference with the right to take leave.

But according to the labor law firm Jackson Lewis, a recent decision from the Chicago federal appeals court may provide some clarity.

In Kohls v. Beverly Enterprises Wisconsin, the U. S. Court of Appeals for the Seventh Circuit applied the one provision that gives employers the ability to act lawfully to terminate employment during an FMLA leave. It provides that the right to job restoration "shall [not] be construed to entitle any restored employee to ... any right, benefit, or position of employment other than any right, benefit or position to which the employee would have been entitled had the employee not taken the leave."

The right to restoration is, therefore, not absolute, and the ground rules under the statute for exercising this option have been unclear. The Kohls decision, according to Jackson Lewis, gives the employer significantly more support for enforcing workplace rules during the leave period.

The employer was a Wisconsin residential nursing home and rehabilitation facility where the employee worked as activities director. She was hired in May 1997 and began a maternity leave under the FMLA in September 1998.

Between May 1997 and September 1998, the employer had directed the employee to improve a number of aspects of the activities program. At the time her leave began, the improvements had not been made, but the employer had not decided to terminate her employment.

But while the employee was on leave, the employer received complaints from residents, as well as negative information from the temporary replacement, about the employee. Based on this information, the employer refused to reinstate the employee at the conclusion of the FMLA leave period.

The employee sued the nursing home, claiming the failure to restore her to her position as activities director violated the FMLA. However, the federal trial court granted the employer's motion for summary judgment, and the Seventh Circuit Court of Appeals affirmed that decision.

In analyzing the competing FMLA provisions, the appeals court established a standard for proving a violation of FMLA rights that is critically important to employers litigating these kinds of claims.

When balancing the employer's obligation to restore the employee to the job following the leave period with the right to take action that would have been taken had the employee not been on leave, the court put the burden first on the employee to show that she was entitled to restoration to her former position.

It is then up to the employer to show that the employee was not entitled to retain her position even if she had not taken the leave. If the employer can carry that burden, according to Jackson Lewis, then the employee must overcome the employer's evidence and demonstrate her entitlement to job restoration.

In reaching its conclusion, the court noted that the Department of Labor's FMLA regulations recognize an employer's right to deny restoration in situations where an employee was hired only for a discrete project and that project was completed during the FMLA leave or where the employee was subject to a layoff during the course of the leave.

Given these illustrations that an employee's right to job restoration is not absolute, the court reasoned that an employee can be terminated for poor performance while on leave if she would have been fired for such performance even absent the leave.

Moreover, the fact that the employer did not discover the performance deficiencies until after the employee was absent from her position did not limit the employer's ability to fire her, nor did a statement from her supervisor that she preferred the replacement employee.

Finally, the court found that the employer's failure to follow its own policy guidelines (i.e., requiring suspension without pay, an investigation with witnesses, etc.) did not make the termination unlawful and that its role was not to act as a super personnel department and to make suggestions on how to deal with employees more fairly or effectively.

To read more analysis of the decision, visit the Jackson Lewis site.

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