When employees take(or other time off related to a disability), make sure you adjust any work deadlines. Otherwise, you risk a retaliation claim.
That can happen, for example, if the employee has a deadline coming up and can’t finish the work finished on her return. Punishing her for not getting the work done may prompt her to sue.
Recent case: Cynthia McGinnis worked for the New York University Medical Center for more than 30 years until she was fired for failing to complete several projects. She hadn’t had any significant work problems until the months leading up to her termination.
The trouble began when McGinnis asked forleave to care for her dying mother. The university approved leave and McGinnis was off from Aug. 18 through Sept. 11, when her mother died. On Sept. 12, McGinnis had already received an email from her supervisor urging her to complete a project. It read, “Upon your return the space survey must be completed ASAP.”
McGinnis, still grieving, wasn’t able to complete the project by the due date of Sept. 30 and was counseled about the failure. She was terminated shortly after for subpar performance.
McGinnis sued, alleging retaliation for taking FMLA leave. The court said her case could go to trial, based on the email and the timing alone. (McGinnis v. New York University Medical Center, No. 09-Civ-6182, SD NY, 2012)
Final note: A much better approach is to sit down with a returning employee and discuss any pending projects. Arrive at an agreed-upon deadline that is reasonable under the circumstances, perhaps extending the deadline by the length of the FMLA leave. Don’t, however, urge employees to work while on FMLA leave. That may be interference with their right to FMLA leave.
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