Can I Terminate an Under-Performing Employee Who Takes Leave?
The Massachusetts Paid Family Medical Leave Act ("PFMLA") strictly prohibits retaliation for an employee taking leave. It also creates a presumption that if someone is terminated within six months of returning from leave, the termination was retaliatory.
A presumption, however is subject to rebuttal. For example, if you have documentation of performance problems before the leave that did not improve after a return from leave, you may be able to rebut the presumption.
It is also important to understand what retaliation means- it means an action that was motivated by the fact that the employee took the leave. This should mean that pre-existing performance or attitude problems could justify termination within the six month period. The important question is how much evidence you have to show that the concerns pre-dated the leave.
If you have an employee you were considering terminating who then took a leave, it is a good idea to talk to an employment lawyer about your next steps in the situation.
Learn more here about the Massachusetts Paid Family Leave Law.
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