When It’s Time To Go: Protecting Your Company from FMLA Lawsuits

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Many HR managers fear the potential consequences of terminating an employee after FMLA leave. Lawsuits for FMLA retaliation and discrimination are not uncommon, making many employers fearful of putting “FMLA” and “termination” in the same sentence. However, if letting go of an employee truly is the best decision for your company, there are ways to prepare a solid defense for your actions.

Take a look at a recent HR Morning article that discusses just how you can protect your company in these situations.

Rare case: When it’s OK to fire worker returning from FMLA leave

In these post-ADA Amendment days, HR pros are acutely aware that they need to be extremely careful if they’re considering a decision to terminate an employee who’s exhausted her FMLA leave. Here’s the story of a company that got it right.

The case involved a credit analyst, Kathy Henry, who worked for United Bank in Massachusetts. She was out on FMLA leave for a spinal condition.

Shortly before her FMLA leave was about to expire, she provided her employer with a doctor’s note right stating that she’d need to “remain out of work until further notice.”

Upon review, the company let the worker know it couldn’t hold her position open “indefinitely” and eventually fired her.

But when the worker sued for FMLA retaliation/disability discrimination, the company was prepared.

It had documentation of exactly how the worker’s continued absence would impact it by (among other things):

  • forcing two credit analysts and a supervisor to take on additional work, and
  • overloading the department with work because there were no employees available to temporarily fill the worker’s vacant position.

Result: The court tossed out the employee’s suit in its entirety.

Making your case

It’s clear: If your firm ever decides it must deny an employee additional leave, you need to be able to document exactly how that additional leave would adversely impact your business.

Attorney Jeff Nowak, writing on the FMLA Insights blog, offers a rundown of some of the factors that could prove the leave would create an “undue hardship” on you:

  • significant losses in productivity because work is completed by less effective, temporary workers or last-minute substitutes, or overtired, overburdened employees working overtime who may be slower and more susceptible to error
  • lower quality and less accountability for quality
  • lost sales
  • less responsive customer service and increased customer dissatisfaction
  • deferred projects
  • increased burden on management staff required to find replacement workers, or readjust work flow or readjust priorities in light of absent employees
  • increased stress on overburdened co-workers, and
  • lower morale.

The case is Henry v. United Bank.