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Beware sudden criticism after FMLA request

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in FMLA Guidelines,Human Resources

Here’s something to watch out for when approving a supervisor’s recommendation to discipline or discharge an employee. If the employee has requested FMLA leave and was previously performing well, be suspicious of claims she’s now performing poorly.

It’s certainly possible that her performance dipped. But it’s also possible that her supervisor resented her leave request. Firing her under those circumstances may mean losing an FMLA retaliation and interference lawsuit.

Recent case: Candice Rowe worked as a bank teller and got good reviews while she kept to herself the news that she had multiple sclerosis. But then she learned she would need surgery. She told two supervisors about her condition, and that she would need FMLA leave.

Suddenly, she faced criticism from both. She suspected that they were worried her anticipated absence would mean she’d miss finishing some projects, causing the supervisors to lose a bonus and a prize.

Rowe then submitted her FMLA request, noting her surgery date and anticipated absence. The next day, her leave was approved, though for less time. She was also informed that on the day her leave ended, she would be terminated for poor performance.

When her leave was almost up, she submitted an extension re­­­quest. The bank never responded and carried out the termination.

Rowe sued, alleging FMLA interference and retaliation. The bank argued Rowe was granted leave and therefore had nothing to complain about.

The court disagreed. It pointed to the timing of events and the fact that the bank never considered her extension request. It ordered a jury trial. (Rowe v. U.S. Bancorp, No. 4:11-CV-4015, CD IL, 2012)

Final note: You can fire an employee for poor performance even when she is on FMLA leave. Just make sure you can back up the allegation with examples predating her FMLA leave request.

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