Problems found during FMLA: Is it OK to fire?

Absence makes the heart grow fonder. And in the workplace, it often makes the manager grow wiser, too.

Say that when an employee goes on leave, you discover that co-workers have been covering up for her incompetence. Or you find that she wasn’t telling you the truth.

What can you do if that employee is out on job-protected FMLA leave?

As this new case shows, it’s legally possible to terminate her. Just make sure you can prove you would fire anyone who commits similar mistakes, whether they took leave or not.   

Look at it this way: If an employee went on vacation and you discovered she was incompetent in her job, you wouldn’t hesitate to fire her. That doesn’t have to change just because her absence was due to an illness.

FMLA Compliance D

Recent case: June, a purchasing agent for an Arkansas city, had her own way of organizing paperwork. That made it difficult for co-workers to find work files when needed. Plus, June frequently worked overtime even when her boss warned her against it.

Then June had knee-replacement surgery and took FMLA leave. While June was out, her co-workers reorganized the files and got her work done in a fraction of the time June usually took. The co-workers also took the opportunity to tell supervisors that June was an extraordinarily disruptive force who destroyed morale.

Management concluded it could do without June. When she returned, the city fired her for poor performance. She sued, alleging retaliation for taking FMLA leave.

The court tossed out the case, reasoning that the city had shown legitimate, work-related reasons for terminating June—namely that the work could easily be done without her. (Brown v. City of Jacksonville, No. 12-1730, 8th Cir., 2013)

Bottom line: The FMLA does not protect employees from legitimate discipline, even if the problems are largely discovered during the leave.

The fact that you discovered the wrongdoing or errors while the employee is gone isn’t relevant … nor is it unusual. Em­­ployees’ ineptness often becomes apparent when a co-worker fills in.