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An employee who has worked for you for less than a year mentions
that he will be undergoing surgery that will require him to miss
three months of work. You do not want to deal with the havoc that a
three-month absence will wreak on your schedule; can you fire him?
He is not disabled and the surgery is not for a work-related
injury. And since he has not yet worked a full year, he is not
eligible for leave under FMLA. So no problem, right? Not so fast.
You need to know when he will be taking that absence.
"The determination of whether an employee has worked for the
employer for ... a total of at least 12 months must be made as of the date the FMLA leave is to
start." If the surgery is scheduled to take place before
the employee has completed a year of service, he is not eligible
for FMLA leave and not protected from termination. On the other
hand, if he has scheduled his surgery for after his one-year
anniversary with the company, then he will be eligible for FMLA
leave at the time his expected absence begins — and the
FMLA applies. If you fire him now to avoid the drain on resources
that his absence will cause, you could be liable for interfering with his right to FMLA leave and
for retaliating against him for giving you notice
of his upcoming need for leave.
That is what the courts say. They reason that since the FMLA
requires an employee to give advance notice of an expected absence,
the employee should be protected from interference and retaliation
if he gives that notice — even if he gives more notice than the 30 days
required by the statute. Without that protection, "the
advanced notice requirement becomes a trap for newer employees," which
would defy the purpose of the FMLA. So before you
pull the trigger, make sure that the employee would not be eligible
for FMLA on the day the absence is expected to begin.
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