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Don’t fire before knowing employee can’t return from leave

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in Employment Law,FMLA Guidelines,HR Management,Human Resources

Employees are guaranteed only 12 weeks’ unpaid FMLA leave per year and have no right to return to their jobs if they can’t make it back after their time is up. But that doesn’t mean you should prepare the paperwork to terminate the employee on the day their leave expires. Wait until you get medical documentation showing the employee can’t return.

Here’s why: An employee can sue for retaliation for taking FMLA leave if the employer decided to terminate before it knew the employee wasn’t physically fit to return to work. Employees can prove that’s the case by presenting such evidence as internal memos and even date stamps on returned medical forms.

Recent case: Karen Bryson worked for Supercuts, a chain of beauty salons, for 15 years. She hurt her knee and needed surgery during the busy Christmas season. Her supervisor expressed anger at Bryson’s absence and was heard telling co-workers that Bryson wouldn’t have a job to return to.

The company terminated Bryson on the very day she was scheduled to return and before it got her doctor’s back-to-work certification. In fact, that letter didn’t even arrive until five days later, according to the company’s date stamp.

Bryson sued, claiming Supercuts retaliated against her for taking FMLA leave. The 6th Circuit Court of Appeals said Bryson should get a jury trial, even though the trial court tossed out her case.

The appellate court said a retaliation case turns on the employer’s motive. If the employee can prove animosity because she took leave (through co-worker testimony and the date stamp showing the employer didn’t yet know the employee couldn’t return), then she may be able to prove retaliation. A jury now will decide whether that’s the case here. (Bryson v. Regis Corp., No. 06-5137, 6th Cir., 2007)

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