Be wary of hitting employee with sudden criticism after FMLA request

Here?s something to watch out for when approving a supervisor?s recommendation to discipline or discharge an employee. If the employee has re??quested FMLA leave and was previously performing well, be suspicious of claims that she?s now performing poorly.

It?s certainly possible that her performance dipped. But it?s also possible that her supervisor resented her leave request.

Firing her under those circumstances may mean losing an FMLA retaliation and interference lawsuit.

Recent case: Candice worked as a teller at an Illinois bank and received good performance reviews. She didn?t tell co-workers she had multiple sclerosis. When she learned she?d need surgery, she finally told two supervisors that she would need FMLA leave.

Suddenly, Candice faced criticism from both. She suspected that they were worried her absence would mean she?d miss finishing some projects, causing the supervisors to lose a bonus.

Her FMLA leave request was ap??proved, but she was informed that, on the day the leave ended, she?d be terminated for poor performance. During the leave, the bank ignored her leave-extension request and fired her. ?

Candice sued, alleging FMLA interference and retaliation. The bank argued Candice was granted leave and therefore had nothing to complain about. The court disagreed. It pointed to the timing of events and the fact that the bank never considered her extension request. It sent the case to a jury trial. (Rowe v. U.S. Bancorp, No. 4:11-CV-4015, CD IL, 2012)

Final note: You can fire an employee for poor performance even when she is on FMLA leave. Just make sure you can back up the allegation with examples predating her FMLA leave request.

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