When it comes to mental health, it can be tough how to navigate and then supervise the situation. Take it from an instance where marketing director Michelle (last name not mentioned) was spotted at a Beyonce concert on the same week she went home from a panic attack, taking FMLA leave.
Days earlier, Michelle had been given a performance improvement plan (PIP) to address her poor performance at work: she struggled with the volume of her tasks. Michelle agreed that she couldn’t keep up with her work, and after receiving this plan, went home. The next day she called in, reporting she was “not well” and would be filing for short-term disability benefits. Less than a week later, however, she was spotted at a Beyonce concert in her employer’s corporate skybox, dancing to the show.
When word got out she was at the concert, Michelle’s boss left her a voicemail, asking to discuss the appropriateness of her actions while on FMLA leave. By email, Michelle responded that she had not been released by her doctor to meet and that as soon as she was she would. Her boss emailed back asking her to respond to his inquiry by the end of the day. After Michelle failed to respond, she was terminated for three reasons: poor work performance, attendance at the concert while on leave, and failure to respond to her boss’ inquiry.
Michelle sued her employer, but lost. Here’s why:
- You can require your employees to respond to your reasonable inquiries while they are on leave. Employers often are gun shy about conducting workplace investigations or taking disciplinary action against an employee while the employee is on FMLA leave. This approach is understandable, as employers are worried about the appearance of retaliation because the employee may claim (as she did here) that the employer took action on the heels of an employee’s request for FMLA leave.
Yet, this court decision is an endorsement to carry on with your internal investigations and disciplinary measures so long as you can show that you would have done the same absent any request for FMLA leave.
- You CAN Terminate Employee Who Fail to Communicate with you while on leave. Similarly, employers feel paralyzed to take any action against an employee while they remain on leave.
Stop feeling powerless, and read up on the FMLA website on how to handle these situations.
This article is excerpted from If An Employee Attends a Beyonce Concert While on FMLA Leave, Can She Be Terminated?