In the article “Layoffs During Leave Require Adequate Documentation,” SHRM reports that workers who are on leave protected by federal statute—such as the Family and Medical Leave Act, Americans with Disabilities Act or Uniformed Services Employment and Reemployment Rights Act—could still be laid off provided there is a legitimate, nonretaliatory business reason for the termination. SHRM also noted layoffs during protected leave can be risky, as workers may argue they were targeted for reduction in force because they were on leave.
The publication turned to labor and employment partner Greg Abrams for insight on how employers should be prepared to justify such layoffs.
Abrams said that employers should be prepared to demonstrate that a legitimate business reason, independent of protected leave, justified the layoff affecting workers on leave – noting that seniority is an example of what could be considered a legitimate reason. Abrams added, “Employers should be careful that any reason used is not affected by the fact the employee was on leave.”
