It’s Risky to Fire a Sick Employee Right Before They Are FMLA Eligible

By Eric B. Meyer

I read this case yesterday about an employee who provided her company with a Nov. 12 doctor’s note, requesting that her hours be reduced due to her high-risk pregnancy. The employee would have become eligible for coverage under the Family and Medical Leave Act on Nov. 17.

The company fired her on Nov. 16.

Man, that is cold! But is it unlawful?

A FMLA interference claim

To prevail on her FMLA interference claim, an employee must show, among other things, that she is eligible for FMLA coverage.

She gives notice on Nov. 13 when she’s not eligible. But the FMLA will start on Nov. 17, when she is eligible. And the company fires her in the interim.

Hmm…..

The Court said, under the circumstances, yes:

The determination of whether an employee . . . has been employed by the employer for a total of at least 12 months must be made as of the date the FMLA leave is to start. An employee may be on non-FMLA leave at the time he or she meets the 12-month eligibility requirement, and in that event, any portion of the leave taken for an FMLA-qualifying reason after the employee meets the eligibility requirement would be FMLA leave.

* * *

Defendant does not contend that Wages was not entitled to use sick leave, personal leave, or vacation time to cover her reduced time until she became FMLA-eligible. The only reason Wages was not able to reach her eligibility date is because Defendant fired her before she could do so. The Court therefore finds that Wages was an eligible employee under the framework established by the FMLA.”

A situation that won’t end well

In a nutshell, can you terminate an FMLA-seeking employee just before his/her one-year anniversary with the company?

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Not if that employee can bridge the gap between FMLA-ineligible and FMLA-eligible by using accrued time off.

But, under certain circumstances, yes. For example, if that employee seeks FMLA to care for a spouse with a serious health condition and the employee will run out of accrued time off before becoming FMLA-eligible, then yes.

However, if you’re dealing with an employee who seeks FMLA leave for his/her own serious health condition, even if the employee will run out of accrued time off before becoming FMLA-eligible, firing that employee could run afoul of the Americans with Disabilities Act.

The ADA requires reasonable accommodations for employees with disabilities. And since many serious health conditions qualify as disabilities too. And time off may be a reasonable accommodation. You smell what I’m cookin’?

Trust me, it won’t end up well for you.

You know that scientist in the action movie who has all the right answers if only the government would just pay attention? Eric B. Meyer, Esq. gets companies HR-compliant before the action sequence. Serving clients nationwide, Eric is a Partner at FisherBroyles, LLP, which is the largest full-service, cloud-based law firm in the world, with approximately 210 attorneys in 21 offices nationwide. Eric is also a volunteer EEOC mediator, a paid private mediator, and publisher of The Employer Handbook (www.TheEmployerHandbook.com), which is pretty much the best employment law blog ever. That, and he's been quoted in the British tabloids. #Bucketlist.

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