Can we terminate a poor performer who is currently out on FMLA leave?

Q. Our receptionist has a history of being late for work and taking unexcused absences. She’s out on FMLA leave to care for her sick father. Her temporary replacement is doing an outstanding job and always shows up on time. Can we keep the new receptionist and tell the other one not to return?

A. If she is on a valid FMLA leave, she is entitled to be reinstated to her former job or a substantially equivalent one, unless she would have been terminated anyway even if she had not gone out on leave.

Had you started a progressive-discipline process with her before she went out on leave? If so, the best course would be to have her return to her job. Then discipline her, if warranted, when she takes an unexcused absence or is late.

Terminating her at this point is likely to invite an FMLA retaliation claim.

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