labor lawAdivision of labor law center

In a rare ruling in support of employers, the 7th Circuit Court of Appeals recently found that employers can discipline and even terminate an employee based on problems discovered while the employee is on unpaid leave under FMLA, the federal Family and Medical Leave Act.  

The U.S. Department of Labor has long held that an employee on FMLA leave must be returned to his or her job, when the leave ends. However, the department has also repeatedly ruled that an employer can take any action against an employee, that the employer would have taken anyway, had the employee not be on FMLA leave. For example, the employer can terminate an employee for gross misconduct even if the employee happens to be on FMLA leave at the time the investigation is concluded.

In short, the employer cannot take any negative job action against an employee solely because the employee uses FMLA leave. However, simply taking FMLA leave does not make the employee immune from lay offs, or from being fired for just cause. This is true, even if the employer discovers the misconduct because the employee is on FMLA.

That decision was upheld in the case of Cracco v. Vitran Express, Inc. In this case, Kevin Cracco was a service center manager for Vitran Express, (more…)