FMLA notwithstanding, it’s OK to consider attendance in RIF

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in FMLA Guidelines,Human Resources

Employers that must decide whom to cut during a reduction in force sometimes mistakenly fear they can’t terminate someone who is out on FMLA leave—even if the employee had an atrocious attendance record before she went on leave. That’s simply not fair to other employees.

Recent case: Susan Kelley was consistently a few minutes late to work. Even after counseling, she continued to arrive late, apparently ignoring her supervisor’s reasonable suggestion that she leave home 10 minutes earlier.

Then Kelley took emergency FMLA leave when her father died. Meanwhile, economic problems required her employer to lay off several employees. Kelley was picked because she had the worst attendance record.

She sued for FMLA interference, but the court said the employer did nothing wrong since her tardiness wasn’t related to FMLA leave. (Kelley v. AmerisourceBergen, No. 08-2377, ED PA, 2009)

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