By Barbara J. Koenig, JD
What can you do when an employee appears to be having mental issues, is performing poorly, has been warned about her substandard performance, and suddenly takes Family and Medical Leave Act (FMLA) leave?
You were about to fire her, but she took FMLA leave before you could terminate her. You suspect her performance problems are related to the mental health issues that caused her to take FMLA leave. Can you terminate her while she is on leave?
Do you have to wait until she returns from leave and give her a second or third chance? What if she returns from leave with a certification from a mental health provider saying she is now “fit for work”?
Those questions were addressed in a recent decision from the U.S. Court of Appeals for the 10th Circuit (which covers Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming).