Terminating Employees While on Family Medical Leave

TERMINATING EMPLOYEES WHILE ON FAMILY MEDICAL LEAVE

INTRODUCTION

A controversial subject has been whether it is ethical or unethical whether companies can or cannot terminate an employee while they are on Family and Medical Leave Act (FMLA) leave. The conflict of the subject is how the FMLA reads, is interpreted and perceived by both employee and employer. The human resources departments, of any company, are to know the rights and rules for both employee and employer. They would be involved in the termination process of the employee especially if that employee was on FMLA leave. To start, look at the history of FMLA, then some case studies and how both the employee and employer handled termination while being on the FMLA and the role of human resources department in this situation.

A HISTORY OF THE FAMILY AND MEDICAL LEAVE ACT

The Family and Medical Leave Act (FMLA) is one of the most significant advances for families in our nation's history. More than 50 million employees have taken leave under the FMLA since it was enacted sixteen years ago. FMLA was signed into law on February 5, 1993 and went into effect on August 5, 1993. The FMLA allows workers to take up to twelve weeks of unpaid, job-protected leave to care for newborns, newly adopted and foster children and seriously ill family members, or to recover from their own illness. The Family and Medical Leave Act sets minimum standards for American businesses to provide leave to employees for family or personal health reasons. Eligible employees must be allowed at least twelve workweeks of unpaid time off from their jobs each year for a serious health condition, for the birth or adoption of a child, for the addition of a foster child to a family, or for the care of an immediate family member with a serious medical condition (Public Law 1003-3 2006). Upon returning to work, the legislation requires that the employee be restored to his or her previously held position or an equivalent position, and also protects any benefits accrued before the leave was taken. Employees are only entitled to a leave if they have worked at least 1,250 hours for their employer in the previous year, and the business must have at least fifty employees for the law to apply (Public Law 103-3-2006).

President Clintons signing of the Family and Medical Leave Act into law on February 5, 1993 was the culmination of a nine-year campaign first waged by the Family and Medical Leave Coalition. The battle began in 1984 when a federal district court overturned for reasons of gender discrimination the California Leave Law of 1978, a state law requiring employers to provide maternity leave to female employees (Asher and Lenhoff 2001). The need for national, gender-neutral legislation to protect the jobs of workers dealing with personal and family concerns became apparent to those who had supported the California legislation. Representative Howard Berman, a Democrat from California, called upon the Women's Legal Defense Fund to draft a proposal requiring unpaid leave for employees who take time off for personal and family medical needs. The group did so, then organized and led a coalition of interest groups in efforts to raise support for family leave and to promote its passage into law.

Increasingly, family and medical leave became a "family values" issue and a concern of many middle class Americans. By 1990, over one hundred groups advocating for interests as varied as women, children, seniors, labor, disability, health, religion, and civil rights had joined together in support of family and Medical Leave legislation. Coalition efforts to build support among the general public, as well as among members of Congress, included testifying and securing expert witnesses to testify before Congress, holding numerous debates and press conferences, and conducting research. The breadth and diversity of interests within the coalition contributed to the group's success in achieving bipartisan congressional and popular support (Pyle and Pelletier 2003).

In January 2008, an expansion of the FMLA was done to include military families. The Military Expansion for Injured Service Members Act was signed into law as part of the Defense Department Authorization Act. The Act is to support families caring for injured service member, however, leave takers must still meet the original hours worked and time on the job requirements and covered employers are still only those that meet the FMLA employer definition (NMFA 2008).

CASE STUDIES

Several cases are provided where individuals