When an employee goes on, someone has to do the work. What if that someone easily assumes the employee’s duties and does a great job? Can you use that fortuitous realization as the basis for firing the leave-taker when he returns?
Perhaps. But there’s a risk. The employee may sue, alleging the real reason he was let go was retaliation for taking leave, and not that you figured out the company could get along just fine without him.
Recent case: Jeremiah Lynch, who was in his late 50s, underwent heart treatment and took time off from work, which qualified asleave. During his absence, the company decided to eliminate several positions.
Lynch’s manager had discovered that even when Lynch was gone, the work was getting done. That discovery, he claimed, was one of the main reasons he selected Lynch to be one of the downsized employees.
Lynch sued, alleging that he had been targeted because he took FMLA leave.
The court said that if the company could convince a jury it discharged Lynch simply because it discovered that it didn’t need him, there would be no FMLA violation. It ordered a trial, and Lynch will get a chance to prove the real reason for his discharge was retaliation. In turn, the company will try to show it simply discovered that Lynch, while he was off, was deadwood. (Lynch v. Robertson, et al., No. 3:2005-201, WD PA, 2007)
Final tip: If you decide to eliminate a position, be sure to run the decision by an attorney, who will be able to help you frame the decision in a way that minimizes the chances of a successful employee lawsuit.
- How to Fire an Employee the Legal Way: 6 Termination Guidelines
- Fitness-for-duty exams: When can they be used?
- Track all discipline to show unbiased process
- Sick Leave and the FMLA: Should You Call Off Your Call-in Policy?
- Watch out for retaliation—even if employee never made formal discrimination complaint