Human Resource Blog

Employee was on probation went on FMLA now returning

A senior manager was put on probation. He then asked for FMLA. During the week before his FMLA started he left work early without notifying his supervisor one day. The day before his FMLA leave was scheduled to start he did not report for work and did not call. Now the employee wants to return to work as his 12 week FMLA is up. Can we now fire him for his violation of call in policies?

Perhaps, but you really should have terminated this employee while he was on FMLA. Waiting 3 months to take a disciplinary action certainly looks suspicious, doesnt it??

An employer can take any action against an employee on FMLA that would have been taken anyway, if the employee had not been on FMLA. If you were going to terminate this employee for actions in the week before he went on FMLA, they probably should have been addressed at that time. Taking the action at the time (even if you had to terminate the employee by letter or over the phone) would have also saved the company 3 months of group health insurance premiums, if you contribute to those costs. However, we will give you the benefit of the doubt and say that you wanted to do this in person, and the employees actions prevented you from doing so.

Under the 2009 FMLA regulations, an employee on intermittent FMLA must still follow the employers usual procedures to report any absence. If you normally require that an employee call in one hour before the shift, and this employee did not comply, then the employee can usually be terminated — even if the absence was FMLA. However, be aware that there are limits on this regulation. There can be valid reasons why an employees serious health condition makes reporting impossible. An employee who is in a coma obviously cannot report his or her absence. You need to make sure that the employee does not have a valid reason for not calling on the day before his FMLA started, and that that absence itself was not FMLA.

If you would normally terminate an employee who failed to report properly, and there are not extinuating FMLA circumstances,  then you can lawfully terminate this one.

An employer cannot lawfully terminate an employee simply because the employee used FMLA. That is illegal retaliation under the law. The problem is, by delaying termination, it certainly appears that you are engaging in illegal retaliation. So if you determine that the absence was in fact FMLA, and that the employee may have had a legitimate reason to not report, then he should return to work. You can still consider him on probation.

A better tactic might be to allow this employee to return to work, on probabion, and address any problems as they arise.