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Don’t consider FMLA absences when firing

by on
in Firing,FMLA Guidelines,Human Resources

The FMLA gives eligible employees up to 12 weeks of unpaid leave to deal with serious health conditions. Employers can’t punish or otherwise hold it against employees for taking FMLA leave—that’s interfering with FMLA rights, and it’s illegal.

That’s why it’s important to exclude FMLA leave when making any disciplinary decisions based on employee absences.

Recent case: Jasmine Tellez worked for the Waukegan Illinois Hospital as a patient registrar when she was disciplined for accessing private medical information without permission. She was warned that any further disciplinary problems would result in termination.

Then Tellez discovered she was pregnant and told her supervisors. Because she had complications, she asked her doctor to provide a medical certification showing she would need intermittent leave. She got the certification, and the employer approved her leave.

But tardiness and several absences that Tellez claimed were pregnancy-related were counted as unexcused. Then she received a warning after a patient complained about her. The hospital fired her. The grounds for termination: unexcused absences, the earlier warning and the final warning that followed the complaint.

Tellez protested, and the hospital reconsidered the absences and late arrivals as FMLA leave. But it upheld the discharge based on the patient complaint. Tellez sued.

The court said Tellez should get a jury trial because it was clear the hospital had considered her FMLA absences when it initially fired her. (Tellez v. Waukegan Illinois Hospital Company, No. 07-C-2789, ND IL, 2008)

Final note:
The solution is to identify and disregard all FMLA-related absences before you decide to terminate an employee for attendance reasons.

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