Can I Terminate An Employee On Leave?

This is one of the most common (and sensitive) questions employers face: Can you terminate an employee who is on a leave of absence, or has just returned? The short answer is yes, you can, but with important caveats. 

Employees who are on protected leaves (for example, pregnancy/parental leave, medical leave, or other statutory leaves) have job-protected rights. This means they are entitled to return to their position or a comparable one, and they are protected from reprisal (i.e., punishment) for taking that leave. 

What employers cannot do is terminate employment because of the leave itself.  

However, termination during or following a leave may still be permissible where there is a legitimate, non-discriminatory reason, such as restructuring, business closure, or unrelated performance issues.  

The challenge here is that timing and facts matter: a termination occurring during leave (or shortly after return) will often be scrutinized more closely, and there may be a presumption that the leave was a factor.  

For employers, this creates risk in scenarios such as: 

• Restructuring roles while an employee is off on leave 

• Performance concerns that were not clearly documented before the leave 

• Terminations shortly after return from leave 

To manage that risk, it’s important to ensure the following: 

• There is a clear, well-documented business reason for the termination.  

• The timing can be explained and supported; and  

• The decision is consistent with how similar situations have been handled.  

From a practical perspective, many employers choose to proceed cautiously, sometimes deferring decisions until after return, or ensuring thorough documentation is in place before moving forward.  

These situations are rarely straightforward. When in doubt, it’s worth taking a step back to assess the full context before making the decision and obtaining legal advice before any decisions are made when you’re unsure if a decision is going to create additional liability.  
 
Want to go deeper on managing performance issues, terminations, and severance without increasing legal risk? 

In Ep. 69 | Performance Management, Terminations & Severance: What Employers Often Get Wrong, SpringLaw lawyers Jessica Paglia and Lisa Stam walk through where employers most often get exposed, what makes a termination process legally defensible, and how to handle difficult performance and termination decisions with confidence. 
 

You can watch the full SpringForward webinar recording on YouTube here