Human Resource Blog

Employee on disability

I own a medical office in NJ. One employee who previously was very good at her job has recently started making errors that I know she would not normally make. She has been talked about her work performance on 3 separate occasions.New employees have recently been hired. Since the new hires, this employee has been more inconsistent and now has gone out on disability for 3 weeks due to anxiety. Since she has been out I have found out she had refused requests from a new hire for training help, she has been talking about fellow employees and past employees negatively, she has also talked negatively about the work environment trying to scare the new employees. Do I have any recourse? Can I fire this employee?

If this employee is on a leave covered under the Family and Medical Leave Act (FMLA), then she does have the right to be reinstated to the same or an equivalent position when she returns. But the fact that an employee takes an FMLA or other protected leave does not mean the employer must ignore poor performance. However, it does mean that you must avoid taking any employment action that is retaliatory or that gives the appearance of being retaliatory.

While it is not illegal per se to terminate an employee who is on FMLA or other protected leave, for violation of a company policy, it is generally not recommended and employers are advised to proceed very cautiously in these situations.

The risk is that the employee’s, and perhaps the court’s, perception will be that the termination was in retaliation for the employee’s exercise of their legal rights under the leave laws. In the event of legal action, it will be the employer’s responsibility to prove that the termination was not related to the protected leave.

Even if there were performance issues before the leave, typically, there is inadequate documentation of the alleged performance issue prior to the leave – if there was adequate documentation, the employee would already be gone! And if an employer begins the corrective action/documentation process after the leave, it will certainly appear to be in retaliation.

If the performance issue did not come to light until after the employee was already on the protected leave, and the action she took was something you would terminate any other employee for, then it may be legally defensible to terminate. We would advise that you consult an employment attorney before proceeding with such a termination, as it is very likely that you may end up having to defend your actions in court.