It's not uncommon to realize that employees on( ) leave aren't as productive as their temporary replacements. That puts you in the sticky situation of wishing you could refuse reinstatement for the worker on leave, rather than dumping his or her high-quality replacement.
Can you keep the new blood? In certain cases, yes, but it's legally risky. Here's why:
Under the FMLA, you're not required to reinstate employees who you would otherwise have terminated if they had remained at work (rather than going on leave). Layoff situations are fairly easy to defend. But you'll face a tougher time when making FMLA firings for performance reasons.
Your best course of action: Produce documented and progressive evidence of the employee'sbefore the em-ployee requests .
That way, you'll prove that your decision to deny reinstatement is based on the employee's performance, not on exercising his or her.
Recent case: James Phelan, a city sanitation superintendent, took FMLA leave for health reasons. Prior to his absence, the city documented his poor performance. When his temporary replacement proved a better worker, the city fired Phelan upon his return.
Even Phelan agreed he was terminated because of his poor performance. But he argued that this occurred only because his replacement shined while he was on leave.
A federal appeals court tossed out Phelan's case, saying that employees gain no additional rights while on FMLA leave, so it's not illegal to terminate them for poor performance, regardless of when that decision is reached. (Phelan v. City of Chicago, No. 02-3862, 7th Cir., 2003)