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FMLA isn’t ‘discipline shield’: Fire for unrelated actions

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

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

But Congress never intended the FMLA to act as a shield against legitimate discipline that’s unrelated to the leave.

That’s why you’re free to discipline or discharge employees if you can prove you would have taken the same action regardless of the FMLA leave or request.  

The key: Make sure supervisors or HR carefully documents the reasons for disciplining the employee. When possible, that documentation should come before the FMLA request.

Recent case: Wachovia employee Carl Nelson injured his head in a horse-riding accident. He continued to work but asked for time off because of pain.

Nelson filled out the company’s FMLA forms, but Wachovia said the forms were incomplete. Nelson approached his female 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.

The supervisor quit the next day, saying 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 dismissed his case. It reasoned that an employer doesn’t violate the FMLA when it fires an employee for totally unrelated reasons. (Nelson v. Wachovia Securities, No. 07-3162, DC MN, 2009)

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