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Employees On FMLA Leave Can Be Fired

In Davis v. Temple University Hospital, Inc., No. 14-5981 (E.D. Pa. 2015), the Eastern District of Pennsylvania affirmed that, under appropriate circumstances, an employee can be terminated from employment while on a leave protected by the Family and Medical Leave Act (“FMLA”).

In this case, Davis, who supervised an office at Temple University which provided patient services, had taken FMLA leave on several occasions. She later was involved in an incident which resulted in a patient complaint that reached the top levels of administration at Temple University Health System. Davis was placed on a performance improvement plan as a result of the complaint, and was transferred to a new department. After the meeting where the complaint and resolution were discussed with her, Davis called off sick, and requested FMLA leave for the following week.

Over the weekend after the incident, Davis cleared out her former office in anticipation of the transfer, and took a cot that was in the office. A Temple employee identified the cot as Temple property, and Davis was terminated for taking the cot. Although she was interviewed about the cot as part of Temple’s investigation, it was only after her termination that Davis first stated that the cot was not Temple property.

The FMLA provides for job protection for employees who take qualifying leave. However, the court affirmed that employees do not have an absolute right to reinstatement under the FMLA. The FMLA does not “entitle any restored employee to . . . any right, benefit, or position of employment other than any right, benefit, or position to which the employee would have been entitled had the employee not taken the leave.” 29 U.S.C. § 2614(a)(3). The court stated: “If [Temple] could have legitimately terminated [Davis] if she had not been on FMLA leave, then it could have terminated her while on leave.” Since Davis could have been terminated for taking the cot if she were not on FMLA leave, she could be terminated for it while on FMLA leave

The court held that Davis’s contention that the cot did not belong to Temple did not change the analysis. Temple had no reason to question whether the cot belonged to it, particularly since Davis did not mention her belief that the cot did not belong to Temple when Temple representatives interviewed her about the matter prior to her termination. Moreover, the individual who determined that the cot belonged to Temple was not aware of Davis’s FMLA leave, and therefore could not have unlawfully interfered with her leave under the FMLA.

What Does This Mean For You? This case reiterates that the FMLA does not provide an absolute right to reinstatement to employees on FMLA leave. However, employers should consider carefully whether to terminate an employee who is on FMLA leave. It will be the employer’s burden to prove that it would have taken the same action if the employee had not taken FMLA leave. This may be difficult to prove in many circumstances.

If you have any questions about this or any other employment or labor law issue, please contact Whitney Rahman at (717) 509-7237 or

**This update is provided for informational purposes only and
should not be construed as legal advice or as creating an
attorney-client relationship where one does not already exist**