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Firing during FMLA leave: legal, but usually unwise

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in Firing,FMLA Guidelines,Human Resources,Leaders & Managers,Performance Reviews

Issue: If you uncover an employee's performance problems while she's on FMLA leave, can you fire her?

Risk: Firing may be legal in some cases, but it will likely prompt a legal dispute.

Action: Avoid FMLA firings when possible. Instead, keep documenting the problems and take action after three months.

Suppose one of your customer service reps takes FMLA leave, but the temp who replaces her discovers dozens of egregious errors in the rep's files. Can you fire that customer service rep for performance reasons while she's still on FMLA leave?

Technically, yes. If you can prove that you would have fired the employee if she had been at work, you can also fire her while she's on leave.

FMLA doesn't forbid you from firing people on leave. It simply prohibits you from firing them because they took leave. You can still terminate leave-takers if you can prove they weren't doing their jobs. (Make sure you handled other employees who made similar mistakes in the same way.)

Still, while you can fire employees on FMLA leave, it should be done rarely and only if you have rock-solid documentation.

A better course of action: Produce documented and progressive evidence of the employee's poor performance before she requests FMLA leave. Or, allow the employee to return from leave, continue to document her shortcomings and then take action after a few months. That way, you'll prove that you based your decision on performance, not the leave.

Case in point: While nurse Sandra Thorneberry was on FMLA leave, her employer, a hospital, discovered serious errors she had made that cost $40,000. As a result, the hospital fired Thorneberry while she was on leave. She sued, alleging interference with FMLA rights, but lost. Reason: The hospital could prove that it would have fired Thorneberry even if she had not been on leave. (Thorneberry, et al., v. McGehee Desha County Hospital, No. 03-3822, 8th Cir. App., 2005)

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