Human Resources News & Insights

Horror story: How NOT to handle FMLA leave


Note to managers: Telling an employee to find another job on her first day back from FMLA leave probably isn’t the best idea.

That seems to be the opinion of a federal district judge in Virginia, who ruled in favor of a woman who claimed she was fired in retaliation for taking medical leave.

The details:

Patricia Weth served as deputy treasurer of Arlington County, VA. Her boss was treasurer Francis O’Leary.

Weth served in that position for several years before she went on on medical leave to deal with cancer surgery.

The first day back on the job, O’Leary told her, “I want you just to go find a new job and tell me you found a new job and part our ways … (F)ocus on getting a new job; that should be your immediate priority.”

A month later, O’Leary suspended Weth and sent her home, saying she was being relieved of her duties and her only responsibility was to find other employment. Later, she was officially terminated.

Performance problems?

O’Leary said he took the action against Weth based on her serious performance problems — problems, he said, that predated her taking FMLA leave.

The judge acknowledged there was evidence that Weth’s performance wasn’t up to par. But there were a few weak spots in that argument.

The court pointed out that Weth had received a number of highly positive performance evaluations — including one within a year of the time she took FMLA leave.

What’s more, O’Leary had approved several salary increases during Weth’s tenure as his direct report.

In the end, the court said, “the timeline in this case is highly suspicious.” The judge sent the case to a jury trial — which means either an expensive court fight or an expensive settlement.

Painful reminders

What’s to be learned here?

First, it’s a clear reminder that handling employees returning from FMLA leave needs to be a very careful process.

Although courts have ruled that employers have the right to fire returning workers if they can prove the workers would have been terminated whether or not they took FMLA leave, the actual treatment of those returning workers can spell the difference between winning and losing in court.

Telling a returning worker — on her first day back — to find a new job isn’t an effective way to handle the situation, even if the employee legitimately deserves to be fired.

The other lesson here: Sugarcoating performance reviews is a dangerous practice. As this case shows, trying to avoid confrontation over an employee’s performance deficiencies often comes back to bite both the manager and the organization.

The case is Weth v. O’Leary. To read the full court opinion, go here.

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  1. Joanna G. says:

    I fully agree with court rulling. In my view, the employee was given positive reviews for her performance. Her not up to the par work was most likely due to the fact of serious sickness (how about her boss getting a cancer and battling it, hmmm?), not carelessness.
    Employer should rather ask “how she was feeling?” and showing a bit of kindness in this case; in return he would get more committment, more dedication and more of everthing. If lack of performace would be evident for few month upon return from FMLA, then letting go would not present any problem and would not end up in court.

  2. Joanna G. – I agree that the situation was not handled properly, but we cannot assume that the poor performance was due to the illness. I have found that when I have to do the work of a subordinate when they are out, I am able to better judge the quality of their work. Sometimes I find very positive points that can be used as best practices in other areas and sometimes I find that the employee has been neglecting work. Either way, I would have addressed the situation differently.

  3. Whattayamean says:

    O’Leary might know something about money, but he doesn’t know squat about people or labor law. What a cold-hearted pathetic person.

  4. Totally agree with “Whattayamean”. Addiditionally, Mr. O’Leary appears to be ignorant, uninformed, totally oblivious to labor laws, to name a few. This idiot needs to be put out of Arlington County, VA’s nightmare. It’s people like him that costs local tax payers money they shouldn’t be paying out because of his stupidness!! What a moron!!

  5. “HR” makes a good point that I’ve noticed as well – the quality (or lack thereof) of am employee’s work is often more apparent when you have to do their job yourself while they are out. Sometimes I’ve come to really appreciate an employee’s work while they’re gone and other times I’ve found out that there are serious issues that need to be addressed, in both cases because I’ve had to fill in during their absence. Someone being gone can be a real eye opener on their quality of work. It doesn’t sound as if it necessarily applies in this case but there are instances when a supervisor may not really know about someone’s poor performance until a situation like this arises. As others have already said, it was mishandled by Mr. O’Leary any way you look at it.

  6. Temporal Proximity is huge in these cases.

  7. Kebby Hall says:

    Looking at all angles it could be that the County did not do their due dilligence in supervisory training of this employee. Many have been given managerial positions because they have done a good job or have been educated in the field, but has anyone analyzed these individuals for the type of people skills they have or need as a prerequisite. I’ve always said an employee may be a good manager of projects but at the same time a poor manager of people. There is a difference. I also agree with “HR” and this is another reason to crosstrain employees and even job shadow your employees for part, if not the whole day. It would assist with performance reviews and to possibly address “Best Practices” with our processes and in the workplace in general. Needless to say, O”Leary was wrong and possibly needs periodic diversity or sensitivity training. 🙂

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