The Essential Guide to Family & Medical Leave

204 | the essential guide to family and medical leave
Disciplining or Firing an Employee During Leave
You may fire or discipline an employee who is on FMLA leave, as long as
your reasons for firing are entirely unrelated to the employee’s use of the
FMLA. This is easier said than done, because it might be hard to prove
that the employee’s FMLA leave played no part in your decision. This is
particularly true if you are disciplining or firing the employee for poor
attendance. Even if you consider only absences that were not covered by the
FMLA, chances are good that the employee will claim to have been punished
for taking legally protected leave.
The best practice is to make absolutely sure that you’ll be able to prove that
you had independent reasons for acting. You’ll be on safest legal ground if
you initiated discipline or termination proceedings before you knew that the
employee might need FMLA leave. That way, the employee will have a tough
time showing any relationship between the leave and your decision. If you
are imposing discipline for excessive absenteeism, you must be very sure that
you aren’t counting any protected absences against the employee.
Even if you have entirely legitimate reasons for disciplining or firing an
employee, you might find yourself on the wrong end of a lawsuit if you take
action as soon as the employee asks for FMLA leave. Perceptions matter—to
the employee, the lawyer(s) whom the employee consults about filing a
lawsuit, and the judge and jury. If you act right after the employee requests
leave, it’s probably going to look like you acted because of the request, even
if that’s not the case. Although you might eventually win in court (if the
jury believes your side of the story), you and your company will spend a lot
of time and money getting to that victory. You should consult with a lawyer
whenever you are considering disciplining or firing an employee who has
requested or taken FMLA leave.