Business 101 dictates that you really can’t fire someone for actually requesting and being granted time off under the Family and Medical Leave Act (FMLA). In fact, the FMLA includes an anti-retaliation clause that prohibits employers from striking off workers just for taking the leave in order to protect those that require the time off. But what if the employee in question has had some serious performance issues before the leave was granted? Or what if you were in the midst of a corporate reorganization that would have eliminated their job organically?
Turns out, the US Court of Appeals for the 10th Circuit understands that sometimes saying goodbye to an employee on FMLA is necessary. Specifically, in rendering a decision in a recent FMLA interference and retaliation lawsuit, the court cited five instances where a dismissal was warranted. The common thread throughout each of these dismissals was that the employee’s decision to take FMLA leave was not a motivating factor in the decision, nor did it expedite a pending decision in any way. The five “safe” reasons to say goodbye to your employee on FMLA leave are if:
- The employee failed to comply with a direct and legitimate order from supervisors.
- There is overwhelming evidence of performance issues that predated the leave.
- The employee had repeatedly been late to work and was non-compliant with a pre-determined absence policy ahead of their leave.
- The employee had been late, absent from their desk, or failed to timely pay invoices or update list of services received from vendors prior to their leave.
- The evidence is unequivocal that the decision to let the employee in question go had already been made before they took FMLA leave.
Now, a word of caution on the tardiness and absence instances outlined by the court. In some cases, an employee may have a case against you if they can prove that the previous absences or tardiness can be attributed to the reason for the FMLA leave. In addition, you should tread carefully if these extra absences or delayed starts are part of a reasonable accommodation for an individual that has a disability and is thus covered under the Americans with Disabilities Act (ADA). If you are in the midst of a restructuring, particularly if you are thinking about eliminating the position of someone that is currently on FMLA leave, you should also be aware that per FMLA terms, upon their return to work, they must return to their original job or one that is “substantially similar.”
In structuring any discussion about terminating an employee, be sure to document any fire-worthy offences, including tardiness, unapproved absences, or any deviations from your PTO or sick leave policy. In addition, in order to let someone go due to a performance-related issue, you must have documentation noting the performance problems, including examples and dates where applicable. Essentially, the more information you can provide to support your termination decision, the better your chances should you have to face an employee in court. Further, should there be any question as to whether you do have a clear-cut case to let someone go, be sure to run it by your legal counsel or, if you’re already an Abel HR member, give us a call and we can talk you through the process and next steps.
Finally, we cannot recommend enough that you train your managers and other higher ups on how to communicate both the absence of the employee, such that you don’t violate health privacy laws, as well as if a decision is made to let the person go while on FMLA leave. Essentially, you want to be sure that you aren’t sending a message to your staff that their position at the company is in jeopardy should they need to take leave in the future or that needing to take time off for FMLA-approved reasons is in any way frowned upon by staff or will be detrimental to their career trajectory.
