Yesterday’s CED answered three tricky “during leave” FMLA/CFRA questions. Today, the challenge of suddenly discovered performance issues, plus an introduction to the definitive reference guide on family leave in California.
Q. What if we discover a previously unknown performance issue while an employee is on FMLA/CFRA leave?
First of all, if the “performance issue” is simply that the fill-in employee is a better worker, you must still 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 out at 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.
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/CFRA 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 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.”
How To Comply with California and Federal Leave Laws — newly updated!
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 mid-leave 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 family 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 FMLA/CFRA, ADA/FEHA, 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.
Leave Mistakes: Better Prevented Than Remedied
The best way out of a sticky leave-related dispute is to avoid getting embroiled in it in the first place. And to do that, you need current, complete info on the web of state and federal leave laws that apply to you in California — as well as clear explanations of how they interact with one another.
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