You Can't Fire Someone FOR Taking FMLA. You Can Address the Other Thing — Very Carefully.

Someone on r/humanresources asked the question that makes employment attorneys quietly reach for a drink: how do you term a perpetual intermittent FMLA / PFML user? And the basement door of the legal department creaked open, because this is EXACTLY my kind of nightmare.

Let me say the load-bearing sentence first, the one that keeps you out of court: you do not get to fire someone for using leave they are legally entitled to. Full stop. Now let's walk, very carefully, through the narrow and heavily-documented universe where something else can be true.

The cardinal rule: the leave is protected, the person is not immune

The FMLA protects the leave. It does not transform the employee into someone who can never be managed for unrelated, legitimate, well-documented performance or conduct issues. The trap is that the moment leave enters the picture, every action you take gets viewed through a 'was this really about the leave?' lens — by the employee, by their attorney, and eventually by a jury.

Documentation you needed to start six months ago

If your record of someone's performance problems begins the week after they requested intermittent leave, you do not have a performance case. You have a retaliation exhibit. The documentation that actually protects you is the boring, contemporaneous, dated-and-specific kind that existed BEFORE leave was ever on the table. Future-you is always begging past-you for these records, and past-you is always too busy.

The 'suspicious pattern' trap

Yes, the intermittent leave that always seems to land on a Friday or the day after a holiday is maddening. But 'the pattern looks suspicious' is not, by itself, a lawful basis to deny certified leave. The lawful move is to use the tools the statute actually gives you — proper certification, recertification where permitted, consistent call-in procedures applied to everyone — not a vibe about Fridays.

What actually holds up

A clean case is unrelated to the leave, documented before and independently of it, consistent with how you've treated everyone else in the same situation, and reviewed by someone with 'Esq.' after their name. If any one of those four legs is missing, the whole table tips over in deposition.

So: administer the leave correctly, manage genuine unrelated issues the way you would for literally anyone, and write everything down as though it will be read aloud in a courtroom — because it might be. And, you knew it was coming, none of this is legal advice. Consult your employment attorney before you so much as draft the email. 📋