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Document exact timing of decision to fire

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in Firing,FMLA Guidelines,Human Resources

When firing an employee, always note exactly when you decided to terminate her. You will no doubt know before the employee does. Your good record-keeping can shoot down an employee’s attempt to blame the firing on something illegal—like disability discrimination or an attempt to interfere with the employee’s FMLA rights.

Recent case: Lisa Carter is a Licensed Practical Nurse (LPN). The long-term nursing and rehab facility where she worked had a firm pro­gres­sive discipline process that emphasized attendance. That was especially true for the nursing staff, because state law dictates strict patient-to-nurse ratios.

Several LPNs had attendance problems, including Carter. But because nursing professionals are in short supply, the facility let them slide. Then, with absenteeism rising, it decided it had to crack down.

Carter was the first to receive a termination warning. After she missed work again, HR decided she had to be terminated. However, it didn’t tell Carter right away because she was absent the following day.

It turned out that she had been having surgery on her esophagus. When she didn’t come to work, a manager called her and told her she had been terminated.

She sued, alleging she was disabled and entitled to FMLA leave.

But the facility produced paperwork showing when it had made the termination decision—the day before Carter went to the hospital. Since no one at the facility knew about her serious medical condition and potential disability at the time, the court said those couldn’t have been the reasons she was fired. It dismissed her case. (Carter v. Arbors East, No. 2:09-CV-968, SD OH, 2011)

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