A federal appeals court has issued an opinion saying that an employee can be fired for misconduct even though he/she is on FMLA leave at the same time.
The case involved an employer who discovered evidence of serious misconduct while the employee was out on FMLA leave and the company decided to discharge him immediately rather than wait to restore the employee from his FMLA leave first.
The court ruled that the employee’s right of restoration was only as great as his right would be while he was not on leave. Because the employer was able to convince the court that the termination would have occurred regardless of the employee’s leave status, there was no FMLA violation.
Source: http://www.hrnonline.com/newsletter/nl_2009-09-05.html