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Policy calls for firing after leave is exhausted? Make sure you apply it consistently

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in Firing,Human Resources

If you automatically discharge everyone who can’t return to work after exhausting all available leave, chances are a court won’t second-guess those terminations.

Recent case: Virginia had a heart attack and then needed bypass surgery. She took 12 weeks of FMLA leave, followed by another 12 weeks off under her employer’s sick leave plan. During her time off, she also received treatment for carpal tunnel syndrome.

After six months off, she still wasn’t cleared for work. Virginia was then terminated under the company leave policy.

She sued, alleging she had been terminated because she might file a workers’ compensation claim involving her carpal tunnel syndrome.

The employer said it had fired all 300 employees who used up all their leave. It said Virginia’s case was the rule, not the exception.

That was good enough for the court, which concluded that neither Virginia’s potential workers’ compensation claim nor any other protected activity was related to her termination. (Hunt v. Davita, No. 11-2509, 7th Cir., 2012)

Final note: This case wasn’t part of a pattern of firing everyone who couldn’t return to work after just taking FMLA leave.

Advice: If you ordinarily offer only FMLA leave, always consider whether someone is disabled and therefore might be entitled to additional time off as an ADA reasonable accommodation. Also, consider whether a disabled employee might return with some restrictions still in place. The key is to always individually evaluate disabled employees.

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