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Intermittent FMLA - performance issues ongoing - can we terminate? Indiana

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  • Intermittent FMLA - performance issues ongoing - can we terminate? Indiana

    I have an employee who has been on performance write-up the last two years due to failure to follow office procedures, attendance and tardiness. When she was written up recently, she came forward and asked for intermittent FMLA because her daughter has been ill (provided doctor's note - doctor then filled out the FMLA paperwork). They still don't know what the problem is with her child and I know she is stressed. However, her performance continues to decline. Her co-workers are reluctant to give her things to do because of there are errors or she just doesn't get things done. Her department supervisor wants to terminate. She has had performance issues well before her daughter became ill. Performance has been documented. She did not get a raise this past fall due to poor performance (this is when she asked for FMLA).

    Can we terminate based on performance while she's been approved for intermittent FMLA? I view those as two separate issues (albeit her home life may be impacting her work performance). I have a feeling she is hoping to be terminated so she can collect unemployment and stay home with her child.

  • #2
    You are correct - these are two separate issues. Nothing in the FMLA prevents an employer from terminating any employee for a valid reason unrelated to their FMLA status.

    Just be sure you have all the appropriate documentation about her decling performance, disciplinary actions, performance improvement plans, etc. before you terminate. Should she decide to make a complaint to the DOL that it was a retaliatory discharge, you'll want to be in a good position to refute that.


    • #3
      You can terminate an employee even though they qualify for FMLA if you would have terminated them had they not qualified for FMLA - just have documentation of the issue/issues for the termination.
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