Q: We have an employee on intermittent FMLA leave caring for a parent. What are our rights, as the employer, with termination if he has job violations while on FMLA? Can we terminate, if warranted? Should we be concerned about wrongful termination?
A: There is always a risk of a retaliatory or discriminatory (or both) wrongful termination claim when you’re terminating an employee during or following a protected leave of absence.
The burden of proof is on the employer to have evidence that clears the business from wrongful termination. This evidence would be documentation of violations, the severity of the offense, policy(ies) violated, and all warning notices, corrective actions, and documenting the employee’s failure to correct behavior and comply. Termination for performance issues alone is the most difficult to defend.
Review established policies and past practices to ensure the fair and consistent treatment of all employees. Particularly in the case of safety violations, you can certainly take appropriate and sometimes immediate action when there is a serious violation posing a significant risk to the employee and/or others. In such a case, you can immediately suspend the employee to investigate. Conduct a complete investigation and consult a qualified employment law attorney before taking adverse action against the employee.