By now, you may have heard that the federal government is shut down. Well, not all of the federal government actually, just those services deemed “nonessential.” Apparently that includes 1600 of the 1611 employees of the NLRB. It also includes, according to the EEOC shutdown plan, 2057 of the EEOC’s 2146 staff and contract personnel. This made me wonder . . . no, sorry, too political, not going there. Let’s just get to the point.
The government shut down did get me thinking about your employees and the taking of FMLA leave. What happens when an employee goes on an FMLA leave and you realize that maybe, just maybe, you don’t really need that employee? Or what if you want to let a department go and that employee is part of the department? Those are good questions, don’t you think? I do. And I know what you are thinking: “No way we can let an employee go while they are in the middle of an FMLA leave, the FMLA specifically gives them a right to return. That is what you were thinking right? Of course you were, and so it does. But, what if the position your FMLA employee was going to return to is no longer necessary? What if you were going to lay that employee off anyway? Can you do it while they are on leave? Well, yes you can. Who says? The Department of Labor says. And they say it in a regulation:
§ 825.216 Limitations on an employee’s right to reinstatement.
(a) An employee has no greater right to reinstatement or to other benefits and conditions of employment than if the employee had been continuously employed during the FMLA leave period. An employer must be able to show that an employee would not otherwise have been employed at the time reinstatement is requested in order to deny restoration to employment. For example:
(1) If an employee is laid off during the course of taking FMLA leave and employment is terminated, the employer’s responsibility to continue FMLA leave, maintain group health plan benefits and restore the employee cease at the time the employee is laid off, provided the employer has no continuing obligations under a collective bargaining agreement or otherwise. An employer would have the burden of proving that an employee would have been laid off during the FMLA leave period and, therefore, would not be entitled to restoration.
Now, one big thing to keep in mind here: If you let an employee go while they are on leave, the burden of proving that you would have let them go anyway is on YOU. Which means you are going to need pretty solid proof that you would have taken the same action even if the employee was not on leave. So keep that in mind before you do anything rash. But, before you read this you were pretty sure the answer was no, and now, maybe not.
One more thing, the DOL’s website has the following disclaimer across the top “NOTICE: Due to suspension of Federal government services, this website is not being regularly updated” so you can’t call them and ask. But don’t worry, I’m still working. You can call me. Did you hear that tree fall? I didn’t either.