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Think worker can’t take FMLA? Run the numbers

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in FMLA Guidelines,Human Resources

Before you decide to fire a troublesome employee for missing work because the absences aren’t covered by the FMLA, double-check your math.

In one recent case, the employer fired a “poor-performing” employee but cited a dubious reason: She was frequently absent to care for her father and wasn’t yet eligible for FMLA leave. In fact, it turned out she was eligible and the court wouldn’t buy any of the other discharge reasons—which were potentially legitimate—because the employer didn’t mention them until later.

Recent case: Karen Chambers had worked continuously for one government agency or another for more than 17 years. However, she had worked at her latest assignment for less than six months. Her supervisors therefore believed she wasn’t eligible for FMLA leave, since she hadn’t worked for the agency for at least one year and 1,250 hours.

The supervisors later claimed that Chambers’ work was riddled with mistakes, that others often had to complete her work and that she spent too much work time on personal matters.

Chambers claimed she tried to take time off under the FMLA to care for her ailing father. On her last day of work, she got a phone call alerting her that her father was being rushed to the hospital. She asked for immediate leave to tend to his needs. She was fired minutes later for what was described as excessive absenteeism.

When she sued, the agency tried to argue that she either wasn’t eligible for FMLA leave or that she had been terminated for other work-related reasons.

The court didn’t buy it, concluding that her years of continuous service made her eligible for FMLA coverage and that the government’s shifting reasons were suspicious. (Chambers v. Hamilton County, No. 1:08-CV-00683, SD OH, 2009)

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