Vigilant Blog

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Dec 20, 2016

Q&A: Risky to discipline for performance problems upon return from leave

DisabilityLeave LawsTermination & Resignation 

Question: One of our employees is elderly, and he is currently out on medical leave for surgery. He has had performance issues, but we haven’t written him up for it. He’s an at-will employee, so can I demote him or eliminate his position because of his performance issues? He didn’t completely fill out his medical certification, so is he even entitled to take medical leave?


Answer: Think about how a government agency or a jury would look at this situation. Would they think you treated this employee fairly?
While at-will employment provides employers and workers with the freedom to terminate the employment relationship at any time, there are public policy reasons that forbid terminating employees on the basis of a protected class or reason. Here, we have to consider at least three potential categories of protection: (1) age; (2) disability; and (3) medical leave. With rare exceptions under certain state laws, an employee is supposed to be reinstated to the original or an equivalent position upon return from medical leave. A government agency or a jury is not likely to respond enthusiastically when you explain that you coincidentally demoted this employee for undocumented performance reasons or eliminated his position due to corporate restructuring after you learned of his medical condition or his need for medical leave. Some courts say that if you take an adverse action against employees shortly after they engage in protected activity, that’s evidence of discrimination. The lack of prior documentation on the employee’s performance issues will make your decision suspect.
Employees sometimes return incomplete medical certifications. Under the federal Family and Medical Leave Act (FMLA) and some state leave laws, you have a duty to advise the employee in writing of the additional information needed to complete the medical certification. You must also give the employee at least seven days to submit the additional information. Employers can’t rely on the technicality of an incomplete medical certification to deny medical leave when they haven’t given employees a proper chance to fix it.
Tips: Document and proactively address performance problems when they happen. Waiting until an employee returns from leave only creates mistrust and misunderstanding of the motives behind the discipline. If you need more information to determine an employee’s eligibility for medical leave, notify the employee in writing with a clear description of what you need and a deadline. If the employee fails to comply, then you can deny medical leave knowing that you gave the employee a fair shot under the law.


This website presents general information in nontechnical language. This information is not legal advice. Before applying this information to a specific management decision, consult legal counsel.