Ask The Lawyer, Can Boss Layoff Worker Who is Out on FMLA?


QUESTION: I own a business which is cyclical. My employees know that no job here is forever. A couple of months ago, one of my employees asked for leave under the Family and Medical Leave Act so he could have heart surgery. He provided the documentation, and I gave him the leave. Since he left, the project he was working on was canceled, and I laid off ten people, including the worker on leave. I wrote him, advising him of the layoff. He is now suing, saying I interfered with his Family Medical Leave Act (FMLA) and retaliated against him for taking leave. Is there anything in the FMLA that prevents me from laying off a worker I had to lay off anyway?

ANSWER: The Family and Medical Leave Act (FMLA) gives qualified workers up to 12 weeks of unpaid leaved during a calendar year. It also protects their rights when they return from leave: They must be allowed to return to the same job they held before the leave, or, if that job is no longer available “to be restored to an equivalent position with equivalent employment benefits, pay, and other terms and conditions of employment.” 29 U.S.C. 2614(a)(1)

So, what happens when an employee’s job is eliminated while they are out on leave? According to cases interpreting the FMLA, a worker returning from FMLA leave is not entitled to restoration “unless he would have continued to be employed if he had not taken FMLA leave.” Hoge v Honda of America Mfg., Inc, 384 F.3d 238 (6th Cir. 2004).

As long as the fact that the employee was on leave was not a “negative factor” in your decision to lay him off, along with the other workers, neither the FMLA or other law requires you to restore him to a position which is no longer available.

But, you should be very careful when laying off workers who are on leave: If an employee can show that other similarly situated employees, who had not taken leave, were not laid off, or were offered options not presented to the employee on leave — transfers or preferential rehiring treatment, for example — you may be on the losing end of a lawsuit.

Since your former employee has already filed a lawsuit, you should take the matter seriously. If you have not already consulted with an attorney, you should do so. The lawyers at GWINN LEGAL PLLC are experienced attorneys and are happy to answer your questions. Give us a call for a free initial telephone consultation about your legal needs. For consideration of your questions in our web column, please submit your inquiry on the “Contact Us” page of our website at

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By: Daniel A. Gwinn, Esq

Attorney and Counselor at Law
901 Wilshire Drive, Suite 550
Troy, MI 48084
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