Lay off after FMLA

pattyo

We have an employee out on FMLA. While she's been out, her responsibilities have been assumed by other employees to the point that we now realize we don't need her. Her job performance wasn't the greatest however now that she's been out we really can see that it's better without her. Any suggestions on how to proceed with letting her go? Any considerations I should be aware of? Thanks for your help.

DMK

FMLA guarantees a job when an employee returns unless downsizing as occurred, etc., however, it's real tricky on how to proceed. I generally lean towards bringing the employee back. Unless you have more than one employee that you "lay off" or let go, it would be hard to prove that it wasn't retaliation or absolutely necessary. Whenever we've had a problem employee go out on leave, we bring them back, address the performance problems when necessary using progressive discipline. Eventually the employee either resigns or is terminated. However, I always ask our supervisors, why wasn't the performance addressed prior to the person going on leave?

stilldazed

You can do an RIF if business circumstances require, and include employees on FMLA LOA if their positions are eliminated in the RIF. It is easier said than done, especially if the only person to be let go is one on FMLA LOA. Not sure the size and scope of your business, but if it's possible to address RIF company wide, now might be a good time. Otherwise, I don't think I'd let this one go. You could easily land yourself in court after having handed the worker evidence of a prima facie case. Then you'd be forced to defend your decisions.

If there has been no change in business circumstances to warrant job consolidations, your real issue is work performance. If you find concrete evidence of serious work issues because the worker is currently absent, info that would not have been available or visible before the worker's LOA began, you may have some lattitude to discipline or place the worker in another job. If not, deal with the issue that you have and work on improving this worker's performance once the LOA ends.

best wishes

pattyo

Thanks to you both for your input and advice. You confirm the action we are going with which is to bring her back , address the performance issue and go from there. We just recently qualified to conform to FMLA requirements so I am wary of any potential pitfalls.

DMK

You're welcome. This is one area you definitely want to proceed with caution. Good luck.