Returning an employee from FMLA leave to a position only long enough to be fired does not amount to a meaningful reinstatement under the FMLA. In Burke v. Laboratory Corp. of America, No. 8:08-cv-2072-T-24-TGW, 2009 U.S. Dist. LEXIS 92891 (M.D. Fla. Oct. 6, 2009), Burke was fired three minutes after returning from FMLA leave. She sued alleging violation of the FMLA. The Court opined:
While the FMLA does not require an employer to keep an employee indefinitely after she returns from medical leave, the law's protections extend beyond reinstating a person to a job for three minutes.
Lab Corp. argued that it terminated Burke as part of a legitimate downsizing. Burke contended that she was terminated due to age discrimination. The court denied the employer and employee's motion for summary judgment on theFMLA claims.
Comment: The court's observation that the right to reinstatement from FMLA
leave prohibits an employer from allowing an employee to return to work
only long enough to be fired, appears, at least to me, to overstate the
FMLA reinstatement right.
As observed by the court, the FMLA does not require an employer to
reinstate an employee in every circumstance. If the employer would have
terminated the employee for legitimate, non-FMLA reasons the employer may do so even if the employee is on FMLA leave. It makes little sense (to me anyway) that an employer may terminate an employee for non-FMLA
reasons prior to the employee returning to work, but somehow loses that
right, at least for some unspecified period, simply because the
employee is allowed to return to work in order to be terminated.
The employer may have legitimate reasons to allow the employee to
return to work before terminating the employee. First, the employer
may believe thatterminations should be conducted in person rather than
over the telephone or by mail. Second, the employer may prefer the
individual be on the clock and allowed on the premises when they are
terminated to allow them to collect their things and saytheir goodbyes
before leaving. For liability purposes, the employer may not want an
ex-employee on the premises to collect their things or talking to
current employees. It just strikes me as one of those no-win
situations. If the employer does not fire the employee in person, they
are cold and impersonal. If they fire the employee in person shortly
after returning from leave, that is cruel as well. I am not sure how
it helps the employee for the employer to wait hours, days, or a week
or two before executing a termination decision that has already been
made. One could argue that is just as cruel to the unsuspecting
employee. While it may put some coin in the employee's pocket,
something not explicitly required by theFMLA, it also delays the employee's ability to get on with his or her life.
The statute nor the DOL regulations provide for any minimum period of time that an employee must be allowed to work on return from FMLA leave before a decision to terminate may be put into effect. Had Congress or the DOL wanted to impose a minimum temporal period before an employer may terminate an employee for non-FMLA leave reasons they could have easily done so. They did not.
It would have been better had the court simply denied summary judgment because of the existence of material facts in dispute. Specifically, whether the termination was the result of legitimate downsizing, as claimed by the employer, or the product of age discrimination, as claimed by Burke.