An employer may not take any adverse action against an employee for the taking of FMLA leave, however, any personnel action/decision that would have happened if the employee had continued to work may happen while the employee is on FMLA leave.

 For example if an employer decides that a reduction-in-force is necessary and the employee taking FMLA leave legitimately falls within the group of employees to be laid off, the employee is laid off even while taking FMLA leave. If the employee is laid off, the employer's obligations under FMLA stop as of the effective date of the layoff. See Regulations Part 29 CFR Part 825.216(a)(1).

An employee may take FMLA leave to seek treatment for drug abuse, however, if the employer has a uniformly applied policy that has been communicated to all the employees, the employer may terminate the employee who has engaged in unacceptable use of drugs, contrary to the employer's policy, despite the fact that the employee is on FMLA leave.

Similarly, a trucking company may have a uniformly applied policy communicated to all employees that a truck driver who fails Department of Transportation required random drug testing will be terminated. A driver is tested and knows he will fail the test when the results become available because he has used drugs. After taking the test he immediately requests FMLA leave to obtain treatment for drug abuse. After leave has begun the employer learns that the employee failed the drug test. The employee may be terminated pursuant to the employer's policy. See Regulations 29 CFR Part 825.112(a).

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