Can I Fire Someone Who Keeps Going on Medical Leave and Takes Too Long to Come Back to Work?

The decision to terminate an employee because of excessive medical leaves can be complex, involving various legal and ethical considerations. This article explores the factors to consider before taking such a serious step, providing guidance based on the given factors and relevant laws.

Key Considerations Before Termination

The answer to your question hinges on three critical factors: notification of medical leaves, adherence to company policies, and the employee's treatment by management.

Notification and Policy Adherence

It is crucial to determine if the employee provided adequate notice for extended medical leaves. If the employee consistently seeks medical leaves without prior intimation, this can indicate a pattern of irresponsible behavior. However, if the leaves are necessary and have been notified in advance, it may be difficult to terminate the employee based on workplace performance or attendance.

Companies often have specific policies regarding medical leaves. Employers must adhere to these policies to avoid legal disputes. Providing reasonable accommodations is also an important aspect of compliance with the Family and Medical Leave Act (FMLA).

Workplace Behavior and Legal Protection

Assess whether the behavior justifies termination or if it is more of a control issue. If the employee's medical leaves are necessary and in adherence to their doctor's recommendations, terminating them could lead to a wrongful termination lawsuit.

Check if the medical leaves are bona fide and supported by a doctor's recommendation. If so, the FMLA offers 12 weeks of unpaid, job-protected leave per year. Employers must allow the employee to return to their old job or an equivalent job when they return from leave.

Strategies for Managing Medical Leaves

To address potential issues without resorting to termination, employers can take proactive measures. This includes:

1. Clear Communication and Documentation

Ensure that there is clear communication regarding the employee's leave schedule. If the employee is taking mornings off for routine appointments, discuss with the doctor if afternoon appointments are available. Encourage them to use the remaining time effectively or provide a solution.

Document all communications and meetings to maintain a record. If the employee continues to take mornings off despite discussions, document this behavior and put it in writing. This can help in the event of any legal disputes.

2. Setting Expectations and Offering Solutions

Clarify the expectations for availability and work performance at the start of medical leaves. Discuss any specific concerns and offer a solution if possible. For instance, if the employee is only attending morning appointments, suggest they could take the afternoon off if the clinic has afternoon appointments available.

3. Fairness in Employment Policies

Ensure that all leave policies, including medical leaves, are applied fairly and consistently. If employees are allowed to take extended leave for non-medical reasons, this can set a precedent. Address any such instances promptly and fairly to maintain fair employment practices.

For example, if an employee has dental check-ups, ensure that only legitimate medical reasons are considered for leave. Dental check-ups or flu shots do not typically require extended leave and should be treated as part of the employee's normal working capacity.

Understanding Legal Protections

Under the FMLA, employees cannot be fired for taking protected medical leaves as long as the leaves are used within the allotted time and under the guidance of a doctor. If an employee exceeds their allotted leave and cannot provide justification, termination may be considered, but regular disciplinary measures should be applied.

Key Points:

The FMLA allows up to 12 weeks of unpaid, job-protected leave per year. Employers must allow the employee to return to their old job or an equivalent job when they return from leave. Employees with proper medical documentation cannot be terminated for using FMLA leave. If an employee exceeds their leave and the behavior is due to insubordination or repeated tardiness, termination may be appropriate.

Conclusion:

Tackling medical leave issues involves a balance between legal compliance and fair employment practices. Employers must consider the reasons for leaves, ensure clear communication and documentation, and maintain fairness in all employment policies. Seeking legal advice can provide additional guidance and protection during these challenging situations.