Make sure your documentation and records support discipline/termination decisions.

Punishing an employee for taking FMLA leave is almost certain to trigger a lawsuit. That's why you must make absolutely sure no supervisor holds FMLA leave against an employee, including using it as an excuse to terminate the employee.

If you must fire someone who has taken FMLA leave, be specific about those nonleave reasons when recommending discharge. That is, if past or future FMLA leave could be perceived as having played a role in the decision-making process, clarify why that's not the case. Be able to point to real-time documentation (emails, reviews, performance logs, etc.) that prove the true reason for the firing.

Recent case: When Veronika took FMLA leave for a back injury, she claimed her boss began treating her differently, including ignoring her emails. Soon after, she was placed on a performance improvement plan for taking time off without "adequate notice." She completed the plan and then applied for (and was granted) four more days of FMLA leave.

After her last FMLA day, her boss sent an email to HR saying the company should consider terminating Veronika, in part, because "of her chronic issues with time and attendance." She was fired and sued, citing FMLA retaliation. To prove retaliation, she had to show she had taken FMLA leave, was qualified for her position, had suffered an adverse action and the adverse action occurred "under circumstances giving rise to an inference of retaliatory intent."

The court sided with her and sent her case to trial, saying that the email demonstrated retaliatory intent. (Chauca v. AdvantageCare Physicians, ED NY)

Final note: Precise language is essential when trying to justify termination or discipline. Don't assume that vague explanations--like "time and attendance issues"--will help make the case.

In the supervisor's email about Veronika, it would have been better to cite days when she was late, didn't follow call-off procedures or left early when no FMLA was involved. The email also could have explicitly stated that taking FMLA leave was not a factor in the decision.

Documenting...