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Firing workers who take FMLA leave? Do it carefully

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in Firing,FMLA Guidelines,HR Management,Human Resources

The federal FMLA and New Jersey’s Family Leave Act (NJFLA) both make it illegal to discipline or terminate employees because they take leave to care for a sick parent or child.

But that doesn’t mean employees who take such leave are “untouchable” from discipline. Just be careful of the timing and the reasons you give when you discipline employees who’ve taken family leave.

Make sure you don’t cite attendance if that’s not the primary reason.

Recent case: Rosa Tamayo began missing a lot of work after her mother was diagnosed with leukemia. Her supervisor knew the illness was the reason for Tamayo’s many absences, but no one told Tamayo she might be eligible for FMLA leave.

Soon after, Tamayo admitted that she’d sometimes recorded working eight-hour shifts when she hadn’t. She then contacted the HR office about taking FMLA leave. Meanwhile, her supervisors decided to terminate her.

That’s when the company made a big mistake: Rather than pointing to her falsified time sheet as the sole reason for Tamayo’s discharge, the termination notice also cited her attendance record. She filed FMLA and NJFLA lawsuits. The court ordered a trial, saying a jury should decide if the company considered her FMLA-protected time off. (Tamayo v. Deloitte & Touche, No. 05-3364, DC NJ, 2007)  

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