FMLA

MVTHR

We have a senario here in the workplace, what actions can be taken

We have an employee who has been with company for 3 years.The employee had to have surgurey and requested FMLA. Now that she is out and her replacement is finding alot of discrepancies in her work. What actions can be taken now or do we have to wait for this employee to come back from her leave. Also can we terminate the employee as soon as the employee returns to duty.

HRforME

I strongly suggest seeing an attorney first. Anything you do here will be viewed as retaliation for taking FMLA. While FMLA doesn't protect someone who would have been terminated for job performance anyway, if FMLA is the reason that the discrepancies were found, I would be very very careful.

Document what you have found.  Counsel the employee...watch the results of the counseling. Give warnings and chances to correct ....and then possibly you might be okay to term..but you might think about getting a "release/waiver of claims" by giving some type of severance.

IT HR

I agree with HRforME that this is a tricky situation and you need to talk to your attorney before terminating.  Here are a couple of things to think about:

1. Has this person been disciplined in the past for poor performance or is this the first time you have seen anything related to this poor performance?
2. What have you done in the past when you have found discrepancies like this?  You need to look at what you have done in the past and what precedence you would be setting for the future.
3. Are the discrepancies/poor performance so bad that it should warrant termination immediately (is this what you would do with someone that was not on FMLA or would you discipline and then terminate if the performance didn't change)?

There are a lot of retaliation claims related to FMLA out there right now.  The majority of them that I have seen have gone against the employer, so I would tread lightly and talk to an attorney if termination is what you are seeking.

MVTHR

Thank you all very much for you'll responses and I really appreciate the wonderful advice that you'll gave.

TXHRGuy

[quote user="HRforME"] I strongly suggest seeing an attorney first. Anything you do here will be viewed as retaliation for taking FMLA.[/quote]

Enough said.