Once in a while, it takes an employee’s long-term absence to discover that she hasn’t been doing her job very well.
Take, for example, an employee who suddenly needs. Her work has to get done and you move other employees around to accommodate the absence. If they discover serious problems with how the worker out on leave had been doing the job, your hands aren’t tied.
Here’s how to handle the situation. Investigate the problems. Then decide whether you would have terminated the employee based onif she had not been out on FMLA leave.
You don’t have to ignore problems you discovered only because an employee started missing work. Remember, the FMLA doesn’t provide protection from discipline that the employee would have earned had she not taken leave.
Recent case: Adesina worked for a private nonprofit organization that provides services to people with developmental disabilities. Part of her job was to make sure the clients on her roster maintained eligibility for various state and federal programs like food stamps and Social Security Disability income support programs.
Several times, Adesina had been placed on probation and warned to stay on top of client eligibility.
However, nothing prepared the nonprofit for what it discovered after Adesina was injured in an auto accident. Adesina had to take FMLA leave because she couldn’t work and her co-workers assumed her duties. They found out that in 99 out of the 160 cases Adesina was overseeing, clients had not had their food stamp eligibility renewed.
When Adesina returned to work after her FMLA leave expired, the nonprofit fired her for poor performance.
She sued, arguing that anything an employer discovers during FMLA leave that it would not have discovered had an employee remained on the job could not be grounds for discipline.
The court disagreed with that line of reasoning and tossed out the case. It concluded that as long as an employer can show it would have fired any other employee who hadn’t taken FMLA leave for the same mistakes or performance level, it was free to fire someone on or returning from FMLA leave. (Mercer v. The Arc of Prince Georges County, No. 13-1300, 4th Cir., 2013)
Final note: Some employees also believe that if they are about to be fired for any reason, all they need to do is request and take FMLA leave to stop the process. That’s not true either.
You don’t have to stop discipline already in progress just because the employee asks for FMLA leave.
Consult your attorney, however, if you haven’t documented shortcomings or other disciplinary problems that occurred before the FMLA request. If the employee who requests leave had excellent performance before, you will be hard pressed to use prior problems unless you clearly discovered them during the absence.
As always, the key is careful, ongoing documentation. Anything else will look like retaliation for requesting or taking FMLA leave.
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