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You have the go-ahead: Fire employee if you discover problems during FMLA leave

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in FMLA Guidelines,Human Resources,Leaders & Managers,Management Training

When an employee takes FMLA leave, chances are you’ll have to replace him with a temporary employee or assign the work to others.

What happens if the fill-in worker discovers that the employee currently out on FMLA leave wasn’t doing as good a job as you thought? Can you then fire the employee while he’s on FMLA leave?

The answer is yes, according to a recent 7th Circuit Court of Appeals decision.

Recent case: Michael Daugherty rose rapidly through the ranks at his employer, a nonprofit serving people with developmental disabilities. Daugherty started as a maintenance assistant and wound up becoming the nonprofit’s vice president of information technology.

But employees began complaining about Daugherty’s management style, and management told him to cancel his upcoming vacation so he could address the problems.

Almost immediately, Daugherty went to his doctor and got a medical excuse recommending that he take at least two weeks off due to stress. The company approved his request for FMLA leave.

While Daugherty was off, the company discovered that many e-mails were missing from their servers. It also found out that Daugherty had ordered items using the company credit card without authorization and had them shipped to his home. The company brought in computer experts to review its IT setup and found out the system had problems.

Meanwhile, the nonprofit ordered Daugherty to stop accessing the computer system while on leave and to turn in his passwords. He refused and instead asked for more FMLA leave. The request was granted.

Outside experts told the company that on the day Daugherty had first been disciplined and his vacation canceled, someone had deleted more than 5,000 files from the system. The nonprofit fired Daugherty for his poor management style, poor management of the IT function and for the missing files, improper ordering and his refusal to turn over his passwords.

He sued, alleging the company had interfered with his right to reinstatement under the FMLA. His basic argument was that employees can’t be fired while on FMLA leave, but have to be reinstated and then fired.

The court said that just isn’t the case. Employers that discover work-related problems during an employee’s FMLA leave can take whatever action they would have taken had they discovered the problems at any other time.

Employees can’t use the FMLA as a shield from legitimate disciplinary actions unrelated to FMLA leave. They can’t argue that, but for the FMLA leave, the problems wouldn’t have been discovered. Plus, reasoned the court, it makes no sense to require an employer to reinstate the employee only to immediately fire him. (Daugherty v. Wabash Center, No. 08-3104, 7th Cir., 2009)

Final notes: Of course, you shouldn’t wait until someone takes FMLA leave to check for serious problems—especially those involving potential theft, misappropriation and improper accounting practices. Be on the alert, especially if a key employee never takes time off. It may be a sign that he or she is hiding something.

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