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OK to fire worker who has taken FMLA leave–but you had better be prepared to explain why

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in Firing,FMLA Guidelines,Human Resources

Courts are suspicious when em­ployees who have recently returned from FMLA leave are suddenly fired. The timing screams retaliation, espe­cially if the employee didn’t have any prior performance problems and there’s no compelling business reason to reduce staffing.

Yet, chances are you will at some point have to terminate an employee following FMLA leave. Just make sure you can explain why, backed up by solid and contemporaneous documentation.

Recent case: Michael Clark worked as a manager of a Walgreens store. He developed a minor heart problem and had to take a few weeks of FMLA leave for treatment. When his doctor cleared Clark to return to work, Walgreens reinstated him.

A few months later, a subordinate contacted HR to complain that Clark told her to clock out before taking required computer-based training. She believed she was supposed to go through the coursework during work hours. Since she was an hourly employee, that meant Walgreens faced possible overtime liability.

Walgreens conducted an extensive investigation, interviewing several subordinates who also claimed that they were told to complete the required training off the clock. Others said Clark had simply completed the computer modules himself on their behalf. Walgreens fired Clark.

He sued, alleging retaliation and interference with FMLA leave.

But the court tossed out the case. It noted that timing isn’t everything if an employer has a solid, rational reason for termination. Walgreens clearly did. (Clark v. Walgreen, No. 09-6284, 6th Cir., 2011)

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