Document it carefully if, while an employee is out on protected leave, you discover that she has broken a workplace rule that warrants discipline. That way, if she claims the resulting discipline was retaliation, you have evidence to back up your decision.
Employees on protected leave don’t have more disciplinary leeway than other workers.
Recent case: Katie, a respiratory therapist, was able to do her job despite having a back pain disability. However, she had a history of breaking rules and a final warning was placed in her file telling her the next violation would mean termination.
Katie became pregnant and her back problem flared up, forcing her to call in sick. While covering her shift, a co-worker learned from a patient that Katie had allegedly yelled at the patient’s wife. The facility investigated and concluded that the incident violated conduct rules. It fired Katie after reviewing her past disciplinary history and discovering the final warning in her file.
She sued, alleging that she was fired because of her pregnancy and disability.
The court dismissed Katie’s lawsuit after the employer detailed her past disciplinary history and explained how it came to discover the final infraction. The court concluded Katie couldn’t show that disability or pregnancy was the reason she was discharged. (Neideig v. Select Medical, No. 16-1013, 3rd Cir., 2016)
Final note: Be prepared for the fact that terminating someone who has taken protected leave may mean litigation.
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- NLRB decides it now covers retaliation in harassment cases
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