The short answer is, "no." An employee cannot terminate a disabled or injured employee just because their FMLA leave expires. At that point, the question becomes whether continuation of the leave beyond 12 weeks is a reasonable accommodation for a disability. In other words, if it doesn't pose an undue hardship on the employer, then the employee must be allowed sufficient time to recover and return to work, with or without further accommodations.
The FMLA, however, doesn't provide employees with any greater rights to job reinstatement or continued employment. An employer may terminate an employee regardless of FMLA leave status provided that there is a legitimate, nondiscriminatory reason for termination. For example:
· If an employee would have been terminated regardless of FMLA leave because of poor performance, then the employee may be terminated before, during or after FMLA leave.
· If, prior to the leave, the employee is failing meet performance goals or the terms of a performance improvement plan, then the employee may be terminated upon return from FMLA leave.
· Other reasons that employers may terminate employees who are on FMLA leave include:
· Workplace violations or poor performance that come to the employer's attention during the leave; or
· Insubordination, fraud, or other prohibited conduct while out on leave
Also, an employee who is on FMLA leave may be considered for layoff during a reduction in workforce so long as the employee is not chosen for layoff on the basis of FMLA leave.
At bottom, an employer must engage in a good faith, back-and-forth process with the employee to determine whether there are reasonable accommodations that can be made to allow an injured or disabled employee to return to work. Companies that have policies to automatically fire employees after their medical leave expires are breaking the law. We see these types of violations all the time by some of the largest employers in the nation, and have been successful in recovering for the victims of these unlawful practices.