Q&A: Verify documentation if terminating before scheduled leave – FortiGate

Question: An employee who is responsible for billing keeps making recordkeeping mistakes. Despite repeated coaching, there has been no improvement. The issues have gotten serious enough that her manager wants to terminate immediately. This employee was approved for two months of medical leave that begins next week. Do we have to wait until her leave ends to terminate?

Answer: No, you don’t have to delay an employment decision due to scheduled medical leave, but the need for leave means that your decision may be subject to extra scrutiny. Generally, an at-will employee can be terminated at any time for any legitimate business reason, including poor performance. (If you’re in Montana, the Wrongful Discharge from Employment Act (WDEA) requires good cause for terminations once employees complete their probationary periods.) However, before terminating an at-will employee, management and HR should take steps to verify: (1) there is a lawful, truthful reason for the adverse action; (2) the employee was treated fairly compared to others; and (3) you have the records to prove it. It’s particularly important for HR to carefully evaluate the facts and records in support of termination when an employee has engaged in a protected activity or has a protected status. Here, the employee is protected from retaliation for exercising her leave rights. Likewise, the company (through its managers) cannot interfere with her use of protected leave. The company still has the right to hold her accountable for failing to meet performance standards, though.

Building a Legally Defensible Termination Case: The Power of Documentation
To put the company in the best position to avoid a claim of retaliation or interference with leave rights, HR should first confirm that the manager’s motivation has nothing to do with the employee’s scheduled leave (and no evidence suggests otherwise). After verifying the truthful reason for termination, confirm that the employee wasn’t held to different or higher standards than other employees in her position, or otherwise treated unfairly. Performance management documentation should establish that the employee was given: (1) clear expectations; (2) adequate tools, training, and support; (3) specific performance feedback; (4) a reasonable time to improve; and (5) manager follow-up on progress. Of course, there is no one-size-fits-all approach and each situation must be analyzed based on its own facts. The bottom line is that a legally defensible case always depends on – you guessed it – the strength of your documentation! To ensure consistency in your termination process, use Vigilant’s Model Form, Termination Checklist. Please contact your Vigilant Law Group employment attorney if you need specific legal advice or to inquire about our attorney-led course, “Documentation Training for Supervisors.”