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FMLA question

Discussion in 'Human Resources' started by txls, Jul 19, 2013.

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  1. txls

    txls Law Topic Starter Well-Known Member

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    I have an employee out on medical leave due to return in about two weeks. The problem is that the temp I hired to fill in is much, much better at answering the phone, which is about 25% of the job, and equally good at the other 75% of the job.

    Prior to the medical leave, we had been working with the ee on improving her phone skills. There was some improvement but not much.

    We would rather keep the temp. How do we do that without violating FMLA?
     
  2. cbg

    cbg Super Moderator

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    Is there an equivalent job the employee could be put into?
     
  3. txls

    txls Law Topic Starter Well-Known Member

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    There is a possibility of that, but not sure it will work out.
     
  4. Betty3

    Betty3 Super Moderator

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    Agree with cbg. When an employee returns after FMLA leave, the employer must allow them to return to either the same position or to a position equal in pay, benefits, and other terms and conditions of employment.
     
  5. txls

    txls Law Topic Starter Well-Known Member

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    Thanks. The boss doesn't think I know these things so it's always "well why don't you check." So now I can say I did :)
     
  6. Betty3

    Betty3 Super Moderator

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    Some bosses are like that - "are you sure - why don't you check."
     
  7. txls

    txls Law Topic Starter Well-Known Member

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    I usually get that when my answer isn't the one he wanted to hear.
     
  8. army judge

    army judge Super Moderator

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    You can always keep the temp around for an extra 30-45 days after the employee returns.

    Once the employee has returned, the FMLA issues have ended or expired, you can simply tell the person you no longer require their services.

    Just because a person is on FMLA doesn't mean they have a RIGHT to lifelong employment.

    You can't use FMLA as an excuse to terminate them, but they can be terminated.

    Employees out on FMLA possess a statutory right to be reinstated to the same or equivalent job upon returning from such leave. Employers think employees out on FMLA are shielded from from termination regardless of any behavior or performance problems that MIGHT justify such an employment decision. Beyond disciplinary issues, there is no RIGHT to lifelong employment.

    The protection under FMLA is not without certain exceptions, such as information discovered during the leave period that justifies a decision to terminate the employee. The bottom line when contemplating such terminations during or after FMLA especially performance issues, TIMING is everything.

    An employer must show that the employee would have been terminated even if that individual had not taken FMLA. The reason(s) for termination should occur relatively close in time to the decision to terminate the employee. Generally the longer an employer delays between the two occurrences, the less reasonable the termination appears. Thereby making it more likely than not, such an action could be viewed as retaliation for exercising the FMLA option or interfering with an employee’s rights, both of which are prohibited conduct under FMLA.

    If you have ANY doubts about terminating any employee, it is always best to consult your legal staff, or corporate counsel. But, an employer is always able to exercise its rights under "at will" employment.

    The bottom line here is that an employee is always FREE to terminate his or her employment. That holds true for the employer, too. Barring any CBA or employment contract, an employer and its employees are always free to part ways without explanation.

    I've found that when explanations are offered by employers, that's when the trouble often starts. Its easier and simpler to to say, "We no longer have need for your services. Here's your final paycheck, and we wish you well."

    I think this is one of the best white papers I have have found on the topic of terminating employees during or after FMLA. Its written in layman's and HR speak, not "legalese". It also offers some good, common sense advice and tips.

    http://www.kansastag.gov/AdvHTML_Upload/files/FMLA-5-Slip-Ups-White-Paper.pdf
     
  9. txls

    txls Law Topic Starter Well-Known Member

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  10. Betty3

    Betty3 Super Moderator

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    If you want to terminate an employee because of performance issues, as I'm sure you know though, document, document, document ........ (especially if they recently took FMLA leave)
     
  11. army judge

    army judge Super Moderator

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    The less a person (or an employer) says about anything, the better off he/she/they are.
     
  12. Betty3

    Betty3 Super Moderator

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    Employers should always have written documentation though of performance/work issues & notify the employee of the issues - many times this documentation is needed when someone ("problem" employee) is terminated. (comes in handy definitely if UI is contested by employer but also sometimes for other reasons which can be if the employee is terminated during or shortly after taking FMLA leave) If a whole dept. is eliminated or something like that (to save money for example), then that is a different story.

    Most HR people will say always document any "problems" with an employee & notify the employee of the "problems". You generally don't want to terminate 1 employee (particularly problem employee) shortly after taking FMLA & just tell them they are no longer needed - they most likely will be running to a lawyer & saying they were terminated for taking FMLA. It happens. If their job was just eliminated (no problems with employee), the employer will need a good reason/explanation if no one else's job was.

    That is just my thoughts.
     

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