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Pregnant poor performer: Can we fire her?

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in Employment Law,FMLA Guidelines,Human Resources,Leaders & Managers,Management Training,Maternity Leave Laws

Q. We have a pregnant employee who is planning to take maternity leave soon. Her performance has deteriorated badly during her pregnancy, but we don’t think her pregnancy has anything to do with it. Can we terminate? — A.V., Arizona

A. You can, but there is obviously a risk that she will claim her termination is due to her pregnancy and/or in retaliation for her intent to take FMLA leave.

Have you confronted her about her performance? Have you provided her opportunities to improve and guidance as to what you expect from her? Have you given her any disciplinary action short of termination? Are those actions documented?

If you have done all those things, then the risk of a successful claim is minimized. If you have not, you may want to consider putting the employee on a performance improvement plan when she returns from maternity leave.

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