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Firing employees on FMLA leave: Occasionally legal, usually unwise

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

While he was taking leave for depression under the Family and Medical Leave Act (FMLA), Jerry Ogborn got the ax. Reason: During the absence, his employer discovered that Ogborn, a union business agent, failed to file member grievances in a timely way.

Ogborn sued under FMLA, saying the union failed to reinstate him to his job as the law requires. But an appeals court tossed out his case. While it's usually illegal for an employer to refuse to reinstate an employee who takes valid FMLA leave, that right isn't absolute when the worker's job performance is obviously lacking. (Ogborn v. United Food and Commercial Workers Union, Nos. 00-3779 & 01-1546, 7th Cir., 2002)

Advice: You can fire an employee on FMLA leave for poor performance if, and only if, you can prove that the worker would have been fired regardless of the leave. But that's often difficult to prove, particularly if you have no paper trail.

It's vital to supervise employees more closely and document their performance problems on paper before they ask for FMLA leave. Otherwise, you're almost begging for a retaliation lawsuit.

If an employee takes FMLA leave and you have no previous record of his poor performance, don't fire him while he's out. You're on safer ground waiting a couple of months and beginning your progressive discipline process if the poor performance continues.

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