Howard Kurman, Chair of the Offit Kurman’s Labor and Employment Practice Group, delivers Labor and Employment Telebriefs every 2nd and 4th Wednesday at 9am Eastern Time. Mr. Kurman identifies 3-5 developments that have occurred over recent days/weeks that will significantly impact employers nationwide. The teleconferenced updates provide decision makers with employee relations responsibilities an easy way to stay current and compliant with federal and state labor and employment law developments and ahead of trends. The focus is always on the practical, and by receiving the information within weeks of the event, executives can act on suggestions early while there is time and opportunity to put in place the best solutions.
Here is an excerpt transcribed from Mr. Kurman’s Labor & Employment Telebrief 2.26.14.
Can an Employee on Medical Leave be Terminated?
At the end of January, the case of Ketchum v St. Cloud Hospital was decided by a federal district court in Minnesota. An employee (Ketchum) sued the St. Cloud Hospital, alleging she was unfairly and discriminatorily terminated during her Family and Medical Leave Act (FMLA) absence for breast cancer. Prior to this leave, Ketchum was placed on probation for performance-related incidents and an inability to get along with colleagues. Then, during her FMLA leave, Ketchum and her husband visited the office. While there, her husband stared at some co-workers in a threatening manner, which allegedly spiraled into threats.
A full investigation into the incident was launched. The hospital interviewed several employees and even checked police records. The investigation concluded that she was a threat or a potential threat to other employees, which quickly prompted Ketchum’s termination while on FMLA leave.
“As the court states, an employee who takes FMLA leave has no greater protection against termination for reasons unrelated to the FMLA than she did before taking the leave,” explained Kurman. “Succinctly stated, if an employer can prove it would have terminated an employee even if she had not invoked the FMLA, it will not be liable.”
The take away from this case is that an employee who is out on an approved medical leave, whether ADA or FMLA related, can be terminated if there is just cause.
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