Compliance Partner General Solving the Termi...
Solving the Termination Equation
by Ann Potratz

Whether employees just aren’t working out or they stopped showing up to work weeks ago, employers still hesitate to let them go for a million reasons. From the fear of a lawsuit to the headache of filling the position, it’s understandable that HR pros would dread termination.

But with the right knowledge and understanding, there’s no need to fear the fire. Test your knowledge with these scenarios.

Scenario 1:

A floor supervisor recently lost his temper, threw down his hard hat, and made threatening statements to an employee who made a mistake. He’s gotten angry on other occasions, but never made threats before. Can we fire him?

Answer: If this is a one-time, out-of-character outburst, you might consider if there are other factors at play in determining whether to discipline the supervisor or whether to simply warn him that this type of behavior is unacceptable. However, if you believe this is just an escalation of the other angry behaviors he’s demonstrated in the past, it is likely appropriate to terminate him. In fact, threats of violence or actual violence might even warrant termination on the spot. Depending on the situation, you may need to involve another person as a witness to the firing — or even call the police if the behavior has escalated.

Scenario 2:

An employee’s Family and Medical Leave Act (FMLA) paperwork states that the he will require 16 weeks off, which is more than his allotted 12 weeks of FMLA leave. After he has exhausted the 12 weeks, can we terminate him?

Answer: If the employee exhausts his FMLA leave and cannot return to work, your FMLA obligations cease, but you may have obligations under the ADA to consider.
The ADA requires you to provide a reasonable accommodation to a known disability. In this case, the employee has provided a timeline for return (16 weeks), which qualifies as an accommodation request. When an employee requests a workplace change (such as time off) due to a medical condition, you are required to engage in an interactive process with the employee, with a focus on identifying an effective reasonable accommodation.

What accommodation you provide will depend upon the employee’s limitations in relation to the job’s essential functions. Now, if this employee had asked for excessive or unlimited time off, this would be a different conversation.

Scenario 3:

We recently hired a new receptionist who announced she was pregnant on her first day. The owner of the company doesn’t want to deal with the hassle and feels like she was dishonest for not telling us during her interview. Can we terminate her?

Answer: The owner’s statement that the receptionist was dishonest during her interview for not revealing her pregnancy is concerning. The law clearly states that women are under no obligation to reveal their pregnancy to an employer, especially during the hiring process. Employers are never allowed to take adverse action against women simply because they are pregnant.

In addition, because the employee is new, she probably won’t be eligible for FMLA protections. Some employers mistakenly think that they can terminate pregnant women who don’t have the protection of FMLA, but this is not the case. While it’s up the employer whether or not to provide leave to non-FMLA eligible employees after the baby is born, most of the protections for women during pregnancy actually come from the Pregnancy Discrimination Act (or PDA), not from FMLA.

The PDA forbids discrimination based on pregnancy when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits such as leave and health insurance, and any other term or condition of employment.

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