EMPLOYEE TERMINATION » Following the rules does pay off


My husband frequently makes fun of my innate nature to follow rules. When a sign at the store says don’t carry merchandise into the restroom, I don’t. I go in through the “in” door and out through the “out” door. Boring perhaps, but it keeps me out of trouble (mostly). Well, as one Tulsa business recently found, following rules really can protect your business when you have to terminate someone.

As an employer you face a lot of laws that impact your ability to make decisions about your workforce, and frequently that means you run risks when you make termination decisions. But, remember, you always have the legal right to make decisions, you just need to be confident about the parameters and rules surrounding those decisions. The Tenth Circuit recently affirmed such a “brave” decision in McClelland v. CommunityCare HMO, Inc., Case No. 12-5030.

In McClelland, the employee went on FMLA leave with 416 hours of leave remaining. While on leave, her employer sent her all the appropriate notices, including a notice that her leave was to expire on December 16, 2009 (good move—documentation rules under FMLA are key). McClelland then requested an extended leave stating that she had a doctor’s appointment on December 28 and if her doctor approved it, she may be able to return to work around January 4, 2010. The employer declined the request, but did agree to attempt to accommodate her medical needs with reduced hours or work restrictions (good move #2—following ADA rules by engaging in the interactive process). McClelland failed to respond and the employer terminated her for failure to return to work.

McClelland sued. But, she could not argue she didn’t have notice of FMLA terminating or that the employer messed up in anyway technically. Instead, she had to concede her employer had the right to terminate her under the FMLA, leaving her to argue the employer should have given her more time under some other policies of the employer. Specifically, she had three days vacation available as well as some other leave available under the employer’s policies. The Court disagreed—the employer gave all the leave she was entitled to take under the law.

The takeaway from this for employers is not a surprise: Follow the rules and document, document, document. Know your obligations under the FMLA, and advise the employee of their available benefits. And—this is key—don’t forget to think about other laws that might be implicated, like the ADA. When you do everything you are supposed to do, it is really hard for the employee to argue you should have done more.

As lawyers, we can’t promise you won’t get sued, but it sure does feel good when following the rules pays off.