While an employee here in Miami, Florida is on leave under the Family and Medical Leave Act, many people believe that the worker may not be legally terminated, even when an employer has just cause. However, according to the United States Department of Labor, there are exceptions that may not be considered wrongful discharge. Private companies with fewer than 50 employees may not be subject to the FMLA. For those that do qualify, the burden of proof is on the employer, and any action taken must be carefully considered and backed up with accurate and complete documentation.
The U.S. Office of Personnel Management states that an employee must provide adequate notice before the leave begins. An employer may require notice of at least 30 days. However, if there is an emergency such as a car accident or a sudden illness, the law states that the notification may be given as soon as possible. The employer may require medical certification regarding the health condition without infringing on the employee’s rights under FMLA leave.
An employee who fills a position in the company that is vital to the economic success of the operations may not be reinstated. To avoid legal repercussions, the employer must fulfill the following:
- An employee must be notified in writing of the factors constituting the “key” status to the company.
- The employer must list reasons that the job will not be restored.
- After the notification, the employee must be given an opportunity to return to work.
In situations where employees would have been terminated or laid off had they not been out on FMLA leave, they might lose their employment. The employer must be able to prove that the circumstances did not have anything to do with the absence of the employee. After using all 12 weeks of FMLA leave, an employee who is not able to return to work is no longer under the protection of this status and therefore, employers are under no requirement to guarantee job restoration.