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Don’t let FMLA request stop legit discipline

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in Firing,FMLA Guidelines,Human Resources

Employees sometimes think taking FMLA leave—or even just asking for the time off—protects them from being disciplined or discharged. They hear that FMLA leave is “protected” time off and believe they’re guaranteed permanent, trouble-free employment.

But Congress never intended FMLA leave as a shield against legitimate discipline unrelated to taking the time off.

Employers are free to discipline or discharge employees if they can show they would have taken the same action even if the employee never asked for or received FMLA leave.

Of course, employers have to make sure they carefully document the reasons they have for disciplining the employee.

Recent case: Carl Nelson worked for Wachovia Securities when he fell off a horse and injured his head.

He continued to work, but asked for time off because of pain and potential brain injuries. His supervisor gave him FMLA forms to fill out. Wachovia said his application was incomplete. Nelson approached his supervisor, apparently in a heated way, to ask what was missing.

According to the supervisor, Nelson put his hands around her neck and then left her office. She said Nelson injured her and went home after sending him an e-mail demanding an apology. She quit the next day, explaining that she felt unsafe. Nelson was fired for violating the company’s no-violence policy.

He sued, alleging that Wachovia had interfered with his right to take FMLA leave by firing him.

The court disagreed and dismissed his case. It reasoned that an employer doesn’t violate the FMLA when it fires an employee for totally unrelated reasons. In this case, that unrelated reason was the company’s belief that Nelson had attacked his supervisor. (Nelson v. Wachovia Securities, No. 07-3162, DC MN, 2009)

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