Yesterday’s Advisor answered three tricky “during leave” FMLA questions. Today, the challenge of suddenly discovered performance issues, plus an introduction to the book users call “The FMLA Bible.”
Note: Today’s questions and answers are adapted from an HR Hero publication, Mastering HR: FMLA.
What if we discover a previously unknown performance issue while an employee is on FMLA leave?
First of all, if the “performance issue” is simply that the fill-in employee is a better worker, you still must return the on-leave employee to his or her same job or an equivalent one.
However, if the issue is something you can objectively identify—for instance, the person filling in finds out that the employee on leave has not been performing portions of the job—then the rule is to treat this situation the same as if these issues were found while the employee was just gone to lunch or on vacation.
Generally you would document what has been found, discuss the issue with the employee when he or she returns to work, and then put the employee on a performance improvement plan, etc.
In most instances, it is best to wait until the employee returns from leave, rather than trying to get him or her to come in to discuss the issues right away. Chances are the employee is dealing with enough just with the family or medical issue that has given rise to the leave. Plus, if the employee knows there are performance issues “waiting for his return,” he or she may delay returning from FMLA leave, further delaying your ability to deal with the issue.
However, if the performance issue involves stealing, fraud, or some other act that is grounds for immediate termination and the employee is anticipated to be on an extended, continuous FMLA leave, then you may certainly go ahead and cut off the employee’s computer access, building access, etc.
If the employee discovers that this has been done, or for some reason you have to let him or her know you are doing this during the leave, at that point you may simply note that there are “some issues to discuss related to your employment, but they can wait until your leave is over.”
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If the Employee Presses
If the employee presses you to discuss the issues before the leave is over, you can certainly grant this request. However, you should also document, in writing, that though the issues were discovered while the employee was on leave, you were willing to wait to discuss them with the employee until after he or she returned from leave, and that you are only doing so now at the employee’s insistence.
Once the employee has had an opportunity to offer an explanation of the circumstances, whether at the end of the leave or during it, you then can take the disciplinary action you normally would, including, if necessary, termination of employment before the FMLA leave is up.
In the event that the employee learns that performance issues have been discovered and subsequently avoids coming back, follow your normal protocol regarding recertifications and new certifications. Once the employee has exhausted all of the leave he is entitled to under the FMLA, ADA, company policies, etc., terminate on the basis that leave has expired.
If, at some point, you had formally asked the employee to provide an explanation regarding an otherwise terminable offense, you also can mention this in the termination notice and note that you have not received a response. However, do not state that this was “part of the termination decision.” You are just preserving the existence/your knowledge of the issue in this letter to the extent it becomes relevant later.
FMLA hassles. Get used to it; a new one’s going to hit your desk every day. Intermittent leave, backaches, migraines, certifications—it’s an almost overwhelming task to keep up with the FMLA, and the recent, far-reaching changes haven’t helped. And that’s to say nothing of the devilish complexity of marrying FMLA with ADA and workers’ comp. Good news! BLR’s editors have gone the extra mile to get your comprehensive compliance guide up to date.
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It contains practical answers to all the FMLA questions you are asking—and the ones you haven’t thought of but should be asking.
A whirlwind of changes has hit the FMLA—are you ready to comply? Order BLR’s comprehensive guidebook and find out what you need to do. You’ll get expert FMLA guidance, forms, and concrete examples. Find out more.
The Family and Medical Leave Act Compliance Guide includes:
- Leave law overview
- All the new forms and advice on how to use them
- Practical guidance on implementing all aspects of the new rules
- Analysis of federal and state laws, what they require, and how they interact
- Leave circumstances, coverage, and eligibility—for FMLA, ADA, workers’ comp, and military leave
- Recordkeeping and reporting requirements
- Reasonable accommodation
- Sample policies and forms
- Plus a quarterly newsletter and updates to make sure you stay in compliance as any changes come about
Get more information or order your copy of the Family and Medical Leave Act Compliance Guide