Our employee is very ill which leads to recurring absences for treatment and makes her to incoherent to perform her job. She says she is fine when offered FMLA. Can we legally terminate for attendance and poor performance?

Posted 11-06-2013

Ann Kiernan replies:

My advice is to separate the two issues and handle them differently. Her manager should document the performance problems, with objective, verifiable facts, then sit down with the employee to discuss the problems and explore possible solutions. If significant improvement does not occur, then the manager should follow your organization’s normal policies and procedures for performance improvement. If that is unsuccessful, then termination would be appropriate.

As for the FMLA issue, federal regulations are very clear that designating leave as FMLA is the employer’s decision, not the employee’s (29 C.F.R. §301) You can and should give the employee notice that you are going to start counting as FMLA time the days she takes off because of her serious health condition. Under some circumstances, you could even retroactively designate FMLA days, but please consult with an employment attorney before you do so. Good luck.

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