Can we lay off an employee who is currently on FMLA leave?

The answer is not as easy as one might think. An employee on a protected leave of absence has no greater rights than they would if actively working; however, separating someone while they are on protected leave may create the risk of potential litigation, depending on the circumstances.

For example, if a department consists of 15 people, and one of those employees is on Family and Medical Leave Act (FMLA) leave for child bonding time, there should not be an issue regarding laying off everyone in the department, including the individual on FMLA.

But different concerns might arise in a setting when there are cutbacks contemplated, and