Fire employees who take FMLA leave? Yes, with reason

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

Employees sometimes think taking FMLA leave gives them special protection. Some may even attempt to go out on leave when they know they are about to get into trouble at work.

Don’t fall into that trap. The fact is, if you would have fired the employee even if she had never taken FMLA leave, you can do so if she has taken leave. Employees don’t gain extra protection from being fired if the reason is unrelated to FMLA leave.

Recent case: Jerilyn Lucas was hired as a bank branch manager and did well during her probationary period. Then, her performance began to lapse. She didn’t learn the job very fast. Co-workers began complaining that she wasn’t showing up for work on time and often left early. She later admitted that she actually worked 20 fewer hours per week than some of her fellow managers.

Lucas also had medical problems and frequently missed work because she was sick.

The bank transferred Lucas and demoted her after several branch employees threatened to quit. Still her performance didn’t improve. Instead, she spent lots of FMLA time off dealing with various medical ailments. Finally, the bank fired her for poor performance.

She sued, alleging she had been fired for taking leave.

The court didn’t buy it. It focused on her prior work problems—which it said were unrelated to her illnesses and FMLA leave. It said, “Employers may fire employees for poor performance if they would have fired them for their performance regardless of their having taken leave.” (Lucas v. Pyramax Bank, No. 07-2021, 7th Cir., 2008)

Final note: What should you do if an employee facing discipline suddenly says she needs FMLA leave? Handle the request as you would any other FMLA request. Get medical certification. Process her application and grant the leave she’s entitled to. But you don’t have to stop disciplinary action just because she’s on leave. You can either discharge her while she’s on leave or wait until she returns. 

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