Discovered performance problems while worker was on FMLA leave? You can fire him

By HR Specialist: Illinois Employment Law
4/23/2009 - 3:00pm
Employment Law

HR Specialist: Illinois Employment Law

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Employees are entitled to 12 weeks of FMLA leave if they work for a covered employer and have the requisite service time. Following leave, they are entitled to return to the same job or an equivalent one.

But what if you discover during the leave that the employee wasn’t as stellar as you always believed? What if you couldn’t have known that until you hired a temporary replacement. Must you bring the employee back?

No, according to a recent 7th Circuit Court of Appeals decision.

Recent case: Kevin Cracco worked for Vitran Express for years and got good reviews. Then he went out on FMLA leave, and his temporary replacement discovered what he believed were serious errors. The company investigated and concluded that Cracco had been falsifying delivery records to cover up late or missing shipments. On the day he was scheduled to return, Vitran fired him.

He sued, alleging interference with his FMLA rights.

The company argued that nothing in the FMLA prevents employers from disciplining workers for performance problems discovered while they are out on FMLA leave. Otherwise, it reasoned, it would be stuck with a poor employee just because he took FMLA leave.

The 7th Circuit Court of Appeals agreed and dismissed the case. Employees on FMLA leave don’t have greater rights than other employees who perform poorly. (Cracco v. Vitran Express, No. 07-3827, 7th Cir., 2009)