In some situations, employees taking Family and Medical Leave were on shaky grounds with regard to their continuing employment prior to the absence. The employer then moves to terminate the employee either while he remains on FMLA leave, or just after he returns. As noted by the Tenth Circuit Court of Appeals last month, the timing of these decisions can have major legal consequences for the employer.

In Janczak v. Tulsa Winch, Inc., the employer began contemplating a reorganization that could result in elimination of the plaintiff’s job. In the middle of these discussions, the plaintiff was injured in an automobile accident, and took two months’ FMLA leave. During this leave, the company continued its review of the restructuring, placing the new proposed management structure in place as an interim measure during the plaintiff’s absence. The day after he returned from leave, the employer informed him that his job had been eliminated. He filed suit, claiming interference and retaliation under the FMLA.

The Tenth Circuit reversed a grant of summary judgment for the employer on the FMLA interference claim. In its opinion, the court acknowledged that the employer had contemplated terminating the plaintiff before his accident, but noted that the evidence presented contained no indication that this decision was finalized prior to his commencing his leave. The continuing consideration of the restructuring and the use of the new management structure during leave raised the possibility that the plaintiff’s absence contributed to the termination decision.

The court stated that it was quite possible that the termination decision had been made prior to the leave, but that this is an issue for a jury to decide. The defendant likely could have avoided this mess if it had delayed the termination decision for a reasonable time after the employee’s return from FMLA leave. If it had reinstated him and used the next 30-60 days to finalize its review of the restructuring, the temporal link between the leave and the termination decision would have been much weaker. Absent crystal clear documentation of a final decision to terminate made prior to learning of the employee’s need for leave, termination during or just after FMLA leave presents significant legal risks for the employer.