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If you terminate employees who have used up all their FMLA leave and still can’t come back to work, watch out! Make sure you don’t single out any particular class of employees for firing.

Recent case: Jennifer Demarco took her available FMLA leave for pregnancy and childbirth and was terminated when her leave expired before she was ready to return. She sued, claiming pregnancy discrimination.

But her employer showed that it terminated all employees who used up their FMLA leave and couldn’t yet return. That was enough to get the case dismissed. (Demarco v. Coopervision, No. 09-1299, 2nd Cir., 2010)

Warning: Always consider whether an employee who isn’t ready to return is disabled under the ADA. He or she might then be entitled to reasonable accommodations, including additional leave, schedule modifications or other help that allows the employee to perform the essential functions of the job.

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