Problems surface during FMLA leave? Fire away!

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in Firing,FMLA Guidelines,Human Resources

Sometimes, you won’t find out about an employee’s mistakes until she’s not there to cover them up.

If an employee went on vacation and you then discovered she was stealing, you wouldn’t hesitate to fire her, right? That shouldn’t change just because her absence was due to an illness.

Recent case: Carol Sue Hart worked as director of ancillary services at a hospital. When her supervisor told her that her position would change because of a planned reorganization, Hart got upset. Her doctor quickly diagnosed her with high blood pressure and acute stress disorder and Hart went out on FMLA leave.

While Hart was on leave, her super­visor found out that the hospital had lost its accreditation from the College of American Pathologists and a state laboratory license because Hart had neglected the paperwork. When Hart returned from FMLA leave, she was terminated for poor performance.

She sued, alleging retaliation for taking FMLA leave and interference with her right to reinstatement.

But the court tossed out her case. It believed that the hospital had dis­­covered serious errors while Hart was out on leave and would have ter­­mi­­nated anyone who made similar errors—whether they were at work or on leave. (Hart v. Bon Secours Baltimore Health System, et al., No. 10-2024, 4th Cir., 2011)

Final note: Employees on FMLA leave don’t have greater rights than they would have if they hadn’t taken leave. Just be sure you can show you would fire anyone who committed similar mistakes.

You can even terminate the employee while she is out on leave. The fact that you discovered the wrongdoing or errors while the employee was gone isn’t relevant, nor is it unusual. Often, an employee’s ineptness becomes apparent when a co-worker fills in for her in her absence.

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