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Nov10

Father BabyBonding – Can he be Discharged?

We are a 50+ employer. We have a father taking baby bonding time. He originally requested 2 weeks and now has asked for another 2 weeks extended time. Our company has been evaluating our staffing needs. This employee was in the line-up of being discharged for not meeting work standards but now took baby bonding time. Question: Does the employer need to wait for the return of the employee to discharge or can they discharge while on leave?

The federal Family & Medical Leave Act (FMLA) entitles eligible employees of covered employers to take up to 12 workweeks of unpaid job-protected leave for qualified family and medical reasons, including the birth of a child and to bond with a newborn.

An employee’s entitlement to leave for baby bonding begins when the baby is born and expires 12 months after the date of birth. Bonding leave must be taken as a continuous block of leave unless the employer agrees to allow intermittent leave. So, if the employee is requesting 4 consecutive weeks then he is entitled to the leave.

An employee’s right to job reinstatement while on FMLA leave is no more so than if the employee had been continuously employed and not taken any leave. The employer must be able to clearly show that the employee would have been terminated if the employee never took leave.

It’s important that the decision to terminate this employee isn’t due to him requesting additional leave time. Terminating an employee for exercising his rights under the FMLA is a violation of the law.

Either terminating the employee now or waiting until his return is risky. Both question the validity of the reason for termination. If the employee’s performance was substandard why wasn’t he terminated prior to the leave? You’ll need to be able to prove your reason for termination and the timing of it if a wrongful termination/violation of FMLA rights claim is filed.

If you’re confident you have concrete evidence to prove the employee would have been terminated even if he wasn’t on leave and you can clearly explain why the termination didn’t occur prior to the leave, then you should terminate the employee sooner than later. Waiting any longer will only further question the validity of the termination.

A less risky option is re-evaluating the employee’s performance once he returns from leave.

This entry was posted on Tuesday, November 10th, 2015 at 8:53 pm and is filed under
Labor Laws, Termination.
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