When Google announces layoffs, you know things are bad in the tech sector, but they are just one company. Indeed, it seems that the only big tech firm that has not laid off employees is Apple. However, there is one common thread in the multitude of articles on these layoffs: people on FMLA leave receiving layoff notices. As a result, many readers then ask the obvious question, can employees on FMLA leave be laid off?
Well, can they?
Theoretically, yes. The employment protections granted by FMLA relate only to the FMLA leave itself and the reasons for the FMLA, but they do not grant any protections above FMLA. During FMLA leave, your job is protected for you, but if you would have lost your Chicago, Illinois, job, unrelated to FMLA, the FMLA protections do not apply.
FMLA regulation 825.216(a)
This protection is outlined in FMLA regulation 825.216(a), but as you may guess from the above explanation, the possibilities for abuse are easy. This is why this section puts the burden of proof on the company, and it is why courts assume that the termination was wrongful until proven otherwise.
In other words, the company must prove that the reason why the employee was laid off was unrelated to the FMLA leave or the reason for taking the FMLA leave. This must be more than a proffered reason, and it must be buffeted with documentation and evidence.
Another common thread in the multitude of articles on these layoffs are severance packages, which are likely, at least partially, due to this FMLA burden of proof. Tucked within these severance packages are claims waivers that eliminate the possibility of employment litigation based on these layoffs, included laying off employees on FMLA leave.
This is why many of the severance packages offered recently have been so generous. After all, the employment litigation related to them would likely have cost much more than any money they saved from the layoffs. However, this is also why you should consult with a Chicago, Illinois, attorney prior to signing one of these packages.