As the downturn continues, layoffs have become unavoidable for many U.S. employers. While reductions-in-force are always difficult, it’s even more so when workers are on FMLA leave.

Unfortunately, with 13 million workers taking advantage of FMLA protection every year, it’s not an uncommon problem. So, when is it legal to lay off workers on leave? When do employers run into trouble—and how can they avoid this tricky compliance pitfall?

Understanding the FMLA

The point of the Family and Medical Leave Act (FMLA) is to provide workers with job and benefits protections during certain types of unpaid leave. However, protection is not unlimited, and the law does not completely exempt workers from layoffs and terminations—only those directly resulting from the FMLA leave itself.

In the words of the Department of Labor’s Employer’s Guide to The Family and Medical Leave Act:

“An employee on FMLA leave is not protected from actions that would have affected him or her if the employee was not on FMLA leave…the employer must be able to show that the employee would have been laid off during the FMLA leave period.”

Clearly, it’s the employer’s responsibility to prove that a worker’s FMLA leave is not a factor in his/her discharge. Employers must be able to demonstrate a legitimate, nonretaliatory business reason for taking action—action that would have been taken regardless of the worker’s FMLA status.

For this reason, it’s essential for employers to create detailed documentation to that effect. Employers may want to check with their legal counsel beforehand to ensure their documentation meets presumed DOL standards.

DOL Complaints by the Numbers

Regardless of documentation, there’s a good chance that workers may challenge their employers’ decision. Over the last decade, the Department of Labor has received an average of nearly 1,250 FMLA-related complaints per year.

While the complaints fall into five basic categories (including refusal to grant FMLA leave, refusal to restore workers to equivalent position, failure to maintain health benefits, and discrimination), the largest category—unlawful termination—makes up nearly 42% of these complaints.

Furthermore, during this period, the DOL found violations roughly 50% of the time. Last year alone, the DOL recovered $1.9 million in FMLA violations—and that doesn’t begin to address the headaches these investigations created for employers.

Creating Documentation in Reduction-in-Force Situations

It’s not enough to demonstrate that a number of workers were let go along with those on FMLA. Employers should be able to provide the objective selection criteria behind all their layoff decisions.

HR compliance experts recommend developing a matrix for determining who to lay off, factoring in elements such as: the type of work the employee performs, how necessary/replaceable he or she is, seniority, and—too some degree—performance evaluations. Measurable elements of performance, such as number of rooms cleaned per day for janitorial workers or machine uptime for manufacturing workers, are preferable when available.

In addition, employers may be well served to analyze their layoff selections in terms of the potential impact on protected groups—as recommended by the EEOC—including those on FMLA leave.

Creating Documentation When Poor Performance Is the Issue

It is possible to terminate workers on FMLA leave as a result of poor performance. However, employers generally need detailed documentation of the worker’s performance that predates his/her first day of leave.

For example, if the employee’s personnel file indicates that the worker is already on probation or has received several warnings regarding misconduct or failure to perform his/her duties adequately, that is likely valid documentation.

However, if the worker wasn’t previously made aware of performance issues, that’s problematic—unless significant, provable issues were brought to light after the worker’s FMLA leave began.

According to workplace experts, terminating a worker for absenteeism is particularly risky. Before proceeding, employers are advised to reassess each absence in terms of whether it should have been categorized as FMLA leave.

After all, when workers request an absence that may be covered under FMLA, their managers are responsible for raising the issue of their potential eligibility. It’s not enough for workers to say the magic word, “FMLA.” For this reason and others, it’s important that managers receive thorough FMLA training.

Use Your HR Software to Maintain Compliance

Your HR software is, or should be, one of your most powerful labor compliance safeguards. For example, VensureHR’s HCM system not only tracks FMLA leave, absenteeism, tardiness, and other contributing factors, but makes it easy for supervisors to maintain detailed performance records.

In addition, our online learning platform helps facilitate worker and manager training on a wide range of safety and compliance topics. Learn how our compliance experts can help keep you on the right side of the trickiest labor laws, including the FMLA. You can also read our blog to stay current on the latest FMLA updates.