Use patience when disciplining employee who requested FMLA leave

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in Employment Law,FMLA Guidelines,Human Resources,Leaders & Managers,Performance Reviews

Some employees who are having performance problems think taking FMLA leave will stop any pending disciplinary action. But an employer doesn’t need to hesitate to discipline if it can show that the employee really does deserve the discipline.

But jumping the gun and disciplining the employee for the first mistake she makes after she requests FMLA leave can backfire badly—especially if you have ignored similar mistakes or problems until now. That looks like retaliation and interference with FMLA rights.

Patience is a virtue. Instead of acting immediately, wait until you have a rock-solid reason to discipline, especially if the punishment is termination.

Recent case: Shortly after she started her job as a billing clerk, Anna Harris informed her supervisors she had type 2 diabetes. Then she developed hepatitis C. She claimed later that her supervisor told her if she ever tried to use medical leave, she would be terminated.

Harris had had some performance problems all along, but none that warranted termination. She made a few billing mistakes and once came to work wearing sweatpants in violation of the dress code. But all in all, she got passable evaluations.

Then Harris e-mailed her supervisor, explaining that she needed to take FMLA leave soon. The company fired her two days later, supposedly because she had violated a rule that said billing clerks shouldn’t start conversations with other clerks when delivering bills.

Harris sued, alleging FMLA violations.

The court said her case should go to trial. It concluded that Harris had cast doubt on the employer’s rationale for her discharge. The timing seemed very suspicious and the offense seemed minor, even for a less-than-ideal employee. (Harris v. Amerisourcebergen, No. 05-2036, DC NJ, 2008)

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