Employment Law Blog

News, trends and analysis in employment law and HR

Apr 30, 2013

Employees on leave are protected, even if someone else does the job better

Q&A 

Q: During an employee’s protected leave of absence, the replacement employee performed the job more efficiently and at a higher performance level. Can we eliminate the person on leave, since they’re really not a good performer?

A: That would be an extremely risky move, especially if you haven’t addressed any performance issues with the employee prior to his or her leave. When you first notice an employee’s “performance” issues while they’re on a protected leave (such as the federal Family and Medical Leave Act (FMLA)), you will have an uphill battle arguing that any employment action taken is unrelated to their leave. If not for the individual’s absence, you wouldn’t have had any issues with their performance, so any action you take will likely be considered interference with their leave rights or retaliation for using protected leave. To avoid an interference and/or retaliation claim, you’ll need to reinstate the individual once they return from protected leave. There may be limited circumstances under employment law where immediate employment action is appropriate (e.g. you discover that an employee has been embezzling from your company); but those situations are rare.

If you want to improve the individual’s performance after reinstatement, the best approach would be to let the employee know what you expect out of the position. If you have specific performance expectations, communicate those to the employee and give them plenty of time to meet that standard. Do not tell the employee how well their replacement performed in the role or threaten the employee’s position if they don’t improve. However, if you discovered actual errors in the employee’s own work, you should certainly let them know what they did wrong. Focus on performance coaching and helping the employee meet the performance standard you’ve set, without imposing discipline or threatening further employment action. If performance doesn’t improve after a sufficient amount of time and coaching, then you may be able to move forward with replacement, assuming you aren’t holding the employee to a higher standard than others who didn’t take leave. Be sure to discuss the issues with your Vigilant staff representative beforehand; we can provide employment counsel and help you assess the risks.

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