Planned layoffs can include those who took FMLA leave ? Business ...

Employees on FMLA leave sometimes think they?re immume from being discharged. That?s not true. As long as FMLA leave isn?t a factor in the decision, you can fire those on leave.

Recent case: Robert was the highest-paid employee working on a family-owned pig farm. His job was to oversee swine husbandry. After hurting his shoulder, he took FMLA leave for rotator cuff surgery.

While he was off, the farm had to make layoff decisions. It reduced the pig stock and consolidated operations. It also cut some employees, including Robert. He sued, alleging interference with FMLA leave.

But he had no proof that he was selected because he was on FMLA leave. Instead, the court accepted the farm?s explanation that Robert was the most highly paid (and lowest performing) employee. (Winterhalter v. Dykhuis Farms, No. 11-17-1743, 6th Cir., 2012)

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