Can You Fire an Employee Before They Take FAMLI Leave?
Scenario:
"I have an employee in Colorado who requested to take FAMLI Leave. They have told me in no uncertain terms that they will not be returning to work once their leave of absence is over. I'd rather end their employment now, rather than having to wait 12 weeks.
Can you fire an employee before they take FAMLI leave? "
Answer:
This touches upon a difficult employer reality for protected leaves of absence:
An employee is not obligated to return to work. There is nothing stopping them from choosing to resign after, provided they fall under at-will employment.
Where employers need to be careful is taking retaliatory action against an employee exercising their rights. An employer cannot take retaliatory employment action against a person because they exercised the right to request, file for, or apply for FAMLI benefits.
As defined by Colorado FAMLI, retaliatory employment action means the denial of any right guaranteed under FAMLI, including, but not limited to, any threat, discharge, suspension, demotion, reduction of hours, or any other adverse action against an employee for the exercise of FAMLI rights.
While the employee has communicated a desire to resign after FAMLI leave, it is still their right as an employee to request leave, and the employer has to allow them to do so.
Keep in mind that employees are eligible to access FAMLI leave beginning on their date of hire with your business, but the FAMLI protections do not kick in until after 180 days of consecutive employment with you.
This does not mean that you should make employment decisions prior to the 180th day of employment, instead it means that you may not need to hold the job during their absence if they haven’t been employed long enough for the protections to kick in.
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