An employee has ongoing performance problems. Maybe there have been attendance issues, policy violations, written warnings, or another legitimate concern.
Then the employee goes out on FMLA leave.
Now what?
Can you still move forward with discipline or termination?
Potentially—but not because the employee took protected leave.
The Family and Medical Leave Act (FMLA) provides important job protections to eligible employees who take qualifying leave. Employers cannot fire, discipline, penalize, or otherwise take adverse action against an employee because they requested or used FMLA leave.
At the same time, FMLA does not give an employee greater protection from legitimate employment actions that would have occurred even if the employee had never taken leave. The employer must be able to establish that the employment decision was unrelated to the employee’s use of FMLA.
For California employers, however, FMLA is only part of the analysis.
Before making a termination decision involving an employee who is on—or recently returned from—protected leave, here are five things employers should consider.
An employee cannot be terminated because they requested or took FMLA leave.
But that doesn’t necessarily mean an employee on FMLA leave can never be terminated.
For example, an employer may already have legitimate, well-documented concerns involving performance, misconduct, policy violations, restructuring, or another business reason that has nothing to do with the employee’s leave.
The key question is:
Would the same employment decision have been made if the employee had never taken FMLA leave?
Federal guidance specifically provides that an employee on FMLA leave has no greater right to continued employment than the employee would have had if they had continued working. However, the employer should be prepared to demonstrate that the employee would not otherwise have remained employed.
That’s why the reason behind the decision—and the evidence supporting it—matter so much.
Good documentation matters in almost every employee-relations issue.
When protected leave is involved, it becomes even more important.
Employers should be able to establish a clear timeline showing what happened, when it happened, how the employer responded, and how the ultimate decision was reached.
Relevant documentation may include:
Documentation should be accurate, objective, consistent, and created as issues occur—not reconstructed after a termination decision has already been made.
There is another important distinction: FMLA-protected absences cannot be treated as attendance violations or used negatively against the employee.
The U.S. Department of Labor specifically identifies actions such as assessing attendance points for FMLA leave or writing up an employee for protected absences as potential FMLA violations.
So, for example, an employee may have legitimate attendance problems—but before relying on those absences as part of a termination decision, an employer should determine whether any of them were protected.
That’s where having an experienced HR resource can make a major difference.
This is where things can get complicated.
For California employers, answering the question “Is this employee protected by FMLA?” is not enough.
The employee may have protections under the California Family Rights Act (CFRA) even when federal FMLA does not apply.
CFRA generally applies to employers with five or more employees. An eligible employee generally must have more than 12 months of service and at least 1,250 hours of service during the previous 12 months. By comparison, FMLA has different employer and worksite coverage requirements, including the familiar 50-employees-within-75-miles eligibility requirement.
Depending on the circumstances, employers may also need to consider other protections.
For example, an employee with a qualifying disability may be entitled to additional leave or another reasonable accommodation under California’s Fair Employment and Housing Act (FEHA).
California employers with five or more employees generally have an obligation to provide reasonable accommodation unless doing so would create an undue hardship, and leave can sometimes be a reasonable accommodation. Employers may also have an obligation to engage in the interactive process when they become aware that an employee may need an accommodation—including when an employee has exhausted another form of leave.
Pregnancy-related situations can add another layer. California Pregnancy Disability Leave can provide up to four months of job-protected leave for an employee disabled by pregnancy, childbirth, or a related medical condition, and generally applies to employers with five or more employees.
The takeaway: FMLA ending does not automatically mean all job-protection or accommodation obligations have ended.
California employers should look at the entire leave picture before making a termination decision.
Consistency is one of the strongest foundations of a good HR process.
If one employee receives a written warning for a particular policy violation while another employee is immediately terminated for the same conduct, an employer should be prepared to explain the legitimate reason for the difference.
Protected leave should not result in harsher treatment.
At the same time, employers should be careful with the phrase “treat everyone exactly the same.”
Consistency doesn’t always require identical treatment.
An employee with protected leave, a disability, a pregnancy-related condition, or another legally protected circumstance may be entitled to an accommodation or exception that another employee is not entitled to receive.
The goal should be to apply policies consistently while accounting for legally required protections and accommodations.
That means reviewing the applicable policy, prior disciplinary practices, similarly situated employees, the employee’s leave history, and any accommodation issues before acting.
A termination involving protected leave should rarely be treated as a simple, isolated decision.
Before moving forward, California employers should step back and review the entire situation.
Ask:
And perhaps most importantly:
Would we be making this same decision if the employee had never requested or taken protected leave?
If the answer—or the documentation supporting it—is unclear, that’s a good indication that additional HR review may be needed before acting.
In higher-risk situations, employment counsel should also be consulted before the termination is finalized.
Don’t Let the Timing Make the Decision for You
Employers sometimes make one of two mistakes when an employee goes on protected leave.
They either rush a legitimate employment decision because they’re worried the leave will prevent them from acting later—or they automatically put an otherwise appropriate decision on hold simply because the employee is on leave.
Neither approach is ideal.
Protected leave should never be the reason to fast-track or delay an otherwise legitimate employment decision.
Instead, focus on the facts.
The reason for the decision should be legitimate. The documentation should support it. The timeline should make sense. Policies should have been applied appropriately. And all potentially applicable leave and accommodation protections should be reviewed before the employer acts.
When in Doubt, Review Before You Act
Terminating an employee is already one of the higher-risk decisions an employer makes.
Doing it while an employee is on—or has recently returned from—FMLA, CFRA, disability leave, or another protected absence raises the stakes considerably.
That’s where 3G’s can help.
Since 1976, we’ve helped California employers manage the challenges that come with having employees. Our HR team can help review documentation, disciplinary history, company policies, leave administration, and other HR considerations before a decision is made.
And when an issue crosses into an area where legal advice is appropriate, we can help identify when it’s time to involve qualified employment counsel.
Sometimes the most important HR decision isn’t deciding what to do.
It’s making sure you’ve checked everything you need to check before you do it.
Have an employee situation you’re unsure about? Talk to 3G’s before you act.
This article is provided for general informational purposes only and is not intended as legal advice. Employment and leave issues are highly fact-specific. Employers should consult qualified employment counsel when appropriate.
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