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Can you fire a poor performer who’s on FMLA leave?

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

Q. Our office receptionist has a history of being late for work and taking unexcused absences. She's out on FMLA leave to care for her sick mother. Her temporary replacement is doing an outstanding job and always shows up on time. Our CEO has asked if we can keep the new receptionist and tell the other one not to return. Can we? —J.M., New York

A. It may be legal, but it's risky. Under the Family and Medical Leave Act (FMLA), you're not required to reinstate someone who you would otherwise have terminated if he or she had remained at work rather than going on leave. For example, if a position was eliminated in a layoff while the employee was on leave, it would be fairly easy to defend. But you'll face a tougher time firing this employee for performance reasons while she's on FMLA leave.

Your best bet: Produce documented and progressive evidence of the receptionist's poor performance before she requested FMLA leave. That way, you'll be able to prove that the decision to deny reinstatement is based on her performance, not on exercising her FMLA rights.

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