Human Resource Blog

Firing an employee after start of FMLA leave - Part 3

Hi again,

A couple more questions/facts for you regarding this situation. The employee I refer to had her one year anniversary with our company on March 26, 2009. Would the March 16 - 19 and 23 - 25 absences still have been covered under FMLA even though she was ten days shy of a year with the company?

Also, we did discuss some February absences with her but did not write her up or discipline her in any way. On March 26, we did tell her she was being put on a temporary leave of absence and that she should get back to us after her psychiatrist appt. on March 30. Does this change anything? BTW, we were previously aware of her depression issue as that was the reason she was out for two weeks in July 2008. She also mentioned to us in February 2009 that she had stopped seeing her grief counselor/therapist in December 2008 but that she continued to take antidepressants. We feel that she should not have stopped seeing her therapist.

Thanks again for all your great information!

Hi again! This whole situation is an example of how a very well-meaning, compassionate employer can (unfortunately) get themselves into a legal quagmire by offering too much to the employee.

Thanks for the additional details, but they really do not change our answer. No, the employee was not entitled to FMLA leave for the March absences, since she had not been with the company for 12 months. However, you already crossed that bridge. There is no legal way to terminate an employee but tell her she can use FMLA to collect short term disability. Once FMLA has been granted to an employee, you cannot un-ring that bell.

If you wanted to terminate this employee, you should not have put her on FMLA. In most states other than California, you could have legally terminated her on 3/26 through 3/29 for absenteeism. In California, without a paper trail to show that you have repeatedly tried to work this situation out with the employee, it is wrongful termination. (In every state, employers should document every disciplinary discussion with an employee in writing — even if it is a *verbal* reprimand.) 

If you had written warnings for her absences in February and March, you could have terminated her by 3/30, with no legal repercussions. Instead, you decided to put the employee on FMLA. What is done is done. Employees on FMLA are entitled to return to their job after their unpaid leave ends, with the same salary, working conditions, responsibilities, etc.

On March 26, you had a number of disciplinary options available to you due to the employees absences– suspension, written warning, possibly termination, verbal warning, temporary leave of absence. You choose the temporary leave of absence. Telling the employee to get back to you after her March 30 psychiatrist appt was totally inappropriate. Legally, your decision must be based on her job performance, not her medical condition. Nothing about her job performance changed after March 26 (obviously, because she was not at work.) Therefore, you do not have a reason to take further disciplinary action against the employee now or on March 30.

We just cannot say this more clearly: You had the opportunity to terminate this employee by documenting her absences and letting her go on March 26. Instead, you put her on FMLA. You cannot undo that now.

The employees mode of treatment is really none of your business, and from an HR perspective, you would be far better off not knowing anything about it. You should not encourage the employee to share this information — and her immediate supervisor should not be privy to it. This is one reason why the most recent FMLA certification forms do not even require the doctor to specify a diagnosis — it is entirely optional.

This most recent post certainly suggests that you may have based your decision to (wrongfully) terminate the employee at least in part on her medical information (stopping therapy.) Under the Americans with Disabilities Act or ADA, the employees medical information cannot form even the smallest part of employment decisions such as hiring, firing, discipline, promotion, etc. The employer must make these decisions based only on the employee performance, not medical information.

Can you see how a slick lawyer would twist this situation? Losing this wrongful termination / FMLA / disability discrimination suit could cost you hundreds of thousands of dollars in legal fees and millions of dollars in damages. We are not exaggerating.

The only way to salvage this situation is to reinstate the employee after her FMLA and start off with a clean slate. Treat her like any other employee. If she has attendance or performance problems, address them and document them. But do not look for a reason to terminate her based on her use of FMLA.