Employee fired for violating policy advances FMLA interference claim

The Family and Medical Leave Act (FMLA) creates two substantive employee rights. First, an eligible employee may take up to twelve weeks of protected leave as needed. Second, the employee has the right to return to the same or equivalent job following the protected leave.

To protect those rights, the FMLA makes it unlawful for an employer to interfere with an employee’s right to take medical leave. What happens if an employer believes it has discovered employee misconduct while the employee is on FMLA leave? Or, can an employer fire an employee while on leave based on perceived misconduct? When faced with this situation, employers should proceed with caution.