Employers commonly face situations where managers want to terminate an employee on Family and Medical Leave for reasons unrelated to the leave. These reasons could involve a departmental restructuring, or general layoffs due to business conditions. The FMLA specifically states that employees on leave have no greater legal protections from adverse employment actions not based on their leave status than any other employee. However, the timing of the termination decision if made while the employee is on FMLA leave can raise an inference that the two are connected.

A recent case from the Fifth Circuit Court of Appeals demonstrates that this temporal proximity is not enough to show that the termination decision was based on the employee's leave. In Leal v. BFT, L.P., the plaintiff's position was eliminated while she was on FMLA leave for the birth of her child. She alleged that the decision was made in retaliation for her taking leave, and that the reasons offered by the employer for the decision were merely pretext.

The Fifth Circuit disagreed, affirming summary judgment for the employer. The court noted that the timing of the decision satisfied the plaintiff's burden for demonstrating a prima facie case of retaliation. The burden of proof then shifted to the employer to show legitimate business reasons for the decision. This evidence included (1) proof that the position elimination was discussed before the plaintiff notified her employer of her need for FMLA leave; (2) the fact that no employee was hired to replace the plaintiff, and that most of her job functions were eliminated; and (3) a reduction in the size of the business, making the plaintiff's position less critical. The court found that the plaintiff was not able to offer evidence demonstrating that these reasons were pretext for a retaliatory motivation.

In the end, temporal proximity alone was not enough to support the plaintiff's case. However, employers wanting to terminate an employee on FMLA leave should understand that they bear the burden of demonstrating the business reasons for the decision. Absent clear evidence that the termination decision was not made in retaliation for the employee taking FMLA leave, the ultimate decision as to the motivation for the decision will be left to a jury. Deciding that the operation runs fine without the employee once FMLA leave commences will generally not be enough to avoid a jury trial.