Q&A: Can we lay off an employee who is currently on FMLA leave?

The answer is not as easy as one might think. An employee on a protected leave of absence has no greater rights than they would if actively working; however, separating someone while they are on protected leave may create the risk of potential litigation, depending on the circumstances.

For example, if a department consists of 15 people, and one of those employees is on Family and Medical Leave Act (FMLA) leave for child bonding time, there should not be an issue regarding laying off everyone in the department, including the individual on FMLA.

But different concerns might arise in a setting when there are cutbacks contemplated, and three people are subject to layoff — yet two of those individuals are on protected leaves of absence out of a workforce of 75 people.

In this situation, laying off two people on a protected leave might come under scrutiny. A claim of retaliation might result if the decision is not properly researched and backed by business necessity.

If your company is facing layoffs, few rules govern employers, but the following concerns should be kept in mind:

There is no “last hired/first fired” law unless there is an internal policy to that effect; therefore, job performance is a valid consideration in deciding which employees might be let go.
Any internal policies/handbook rules should be followed to avoid a breach of contract claim.
Layoff decisions should take into consideration whether individuals are on a protected leave of absence, as noted above, so as not to target those individuals.

This is not an exhaustive list, and any layoff should involve examination of business needs combined with consultation with an employment law attorney to guide through these difficult times.

Read more about Making and Documenting the Layoff Decision in the HR Library.

Can we lay off an employee who is currently on FMLA leave?

Q&As