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Disciplinary Action & the FMLA

We have an employee that is having performance issues (quality and quantity). Her supervisor has been going through the progressive disciplinary process with her. Prior to her final warning the employee contacted me for assistance. She told me she is so stressed out, has problems with migraines that affect her ability to perform, suffers from anxiety, is worried about her sick family members, etc. I suggested she contact our EAP and sent her FMLA/STD paperwork. She did not get it done on time so I sent her the follow-up FMLA paperwork and gave her the additional 7 days. She states she has the FMLA paperwork and her doctor will be sending it to me today. Meanwhile, she is now at the final step of discipline… termination due to performance. Do I terminate her despite her request for FMLA? Or do I have to give her FMLA leave and terminate her when she returns? Or do we have to give her additional time to improve her performance once she returns from leave?

The federal Family & Medical Leave Act (FMLA) provides qualified employees of covered employers the right to take up to 12 weeks of leave for certain medical and family reasons. Employers may not take adverse action against an employee for requesting or taking leave under the FMLA. Nor may an employer interfere with an employee’s right to take FMLA leave.

An employee who has requested FMLA leave may still be terminated due to poor performance. However, to avoid a discrimination, interference or retaliation claim, it’s best to have clear evidence that the employee would’ve been terminated regardless if she applied for leave.

It sounds like you’ve followed your established disciplinary process; but, what was the situation that made you decide that termination was warranted? Was there a specific incident that occurred? If so, would any other employee in a similar situation be terminated for the same incident? Basically, you need to be able to provide solid evidence to support the reason for the termination essentially proving that the termination had absolutely nothing to do with the employee requesting leave.

Usually, terminating an employee for performance issues only after she’s applied for leave would constitute retaliation. Reason being, the employer was aware of the employee’s performance issues but never addressed them until the employee applied for leave. This doesn’t sound like the case in this situation. Still, it’s important to ensure your progressive disciplinary process has been followed and documented, and that the final situation truly warrants termination.

If your evidence is questionable then it’s best to proceed as normal with the employee’s request for leave. Assuming no other significant performance issues arise prior to the employee taking leave and the employee’s situation qualifies for FMLA leave, then she should be given her full FMLA entitlement. Don’t be ready to terminate the employee upon her return. She should be reinstated to her position as required under law and given the same opportunities as she would’ve received if she didn’t take leave. This may mean giving her some time to demonstrate her performance abilities.


This entry was posted on Thursday, May 25th, 2017 at 1:45 pm and is filed under
Labor Laws, Termination.
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