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Be sure to coordinate with FMLA administrator before firing

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in Firing,FMLA Guidelines,HR Management,Human Resources

It’s a cardinal sin under the FMLA to fire an employee—even one with an abysmal attendance record—under circumstances even remotely suggesting the termination was punishment for taking FMLA leave. Congress passed the FMLA to make sure employees don’t lose their jobs because they are sick—and courts don’t hesitate to send suspect cases to juries.

If you outsource to another company to administer your FMLA process, work closely with it to ensure you aren’t firing an employee who has been approved for FMLA leave. Instead, make it standard practice to double-check FMLA status before taking any employment action.

Recent case: Joann Stephenson worked for Nokia as director of global benefits. She missed work frequently, seldom even bothering to call in. Some days, she didn’t show up until late afternoon. Consequently, her work suffered. She was placed on a performance improvement plan and told that future absences wouldn’t be tolerated.

That’s when Stephenson began asking for disability and FMLA leave. Nokia outsourced administration of those benefits to a third-party provider, which gave Stephenson the appropriate forms. Meanwhile, HR decided to terminate Stephenson when she didn’t return from a short FMLA leave that had been approved.

Unfortunately for Nokia, when it terminated Stephenson, the administrator had already approved an additional period of FMLA leave. Stephenson sued, alleging interference with FMLA leave.

The court said a jury should decide whether Nokia either retaliated against Stephenson or purposely tried to deny her leave. (Stephenson v. Nokia, No. 3:06-CV-2204, ND TX, 2008)

Final note: There are two lessons in this case. (1) If you use an FMLA administrator, check to make sure it hasn’t approved additional leave before you discharge an employee for not returning from leave. (2) Don’t wait to discipline an employee who obviously isn’t working out. Stephenson probably could have been discharged much earlier, before she ever asked for FMLA leave.

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