Terminating an employee is always a tricky topic to navigate. No matter the size of your organization, letting employees go is something to be dealt with very carefully as we’ve discussed in previous blog posts. This time, let’s focus on if/when/how you are legally allowed to terminate an employee who is out on leave. What should you do when employees don’t show up? #terminations #FMLA

It is never legal to fire an employee simply because he or she took Family Medical Leave Act (FMLA) time off. But, if an employee is out on FMLA and has committed one of these offenses, the U.S. Court of Appeals for the 10th Circuit recently issued decisions that backs up an employer’s decision to do so when these issues were at play prior to the employee taking leave.

1. Employee failed to comply with a direct and legitimate directive from supervisors.

2. Employee was often absent and/or tardy to their job.

3. Employee failed to perform work duties as required and outlined by job description and reviewed in employee performance appraisals.

4. Overwhelming performance issues prior to the leave.

5. Non-compliance with absence policy by the employee.

Looking at each of these items, it is clear that if there were issues prior to the leave, then the employer MAY have a case for terminating an employee on leave. However, always speak with your HR expert or labor law attorney before making these decisions!

If an employee is fired shortly after returning from a leave such as FMLA, make sure that there is adequate documentation and evidence of a prior issue of performance, and that the decision was in the works PRIOR to the employee’s leave. At Peoplescape, we can help you cover your bases, and make tricky termination decisions a little easier! #termination #employeerelations #YourHRConsultants