Can I be terminated while under FMLA for low sales perdoemance?

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Can I be terminated while under FMLA for low sales perdoemance?

I have a signed FMLA from a neurologist for severe migraines. I was fired for ”performance” Wouldn’t performance be covered under that as well? Is this legal? Should I get a labor attorney? They want me to sign a severance waiver.

Asked on May 4, 2012 under Employment Labor Law, Illinois

Answers:

Archibald J Thomas / Law Offices of Archibald J. Thomas, III, P.A. - Employee Rights Lawyers

Answered 9 years ago | Contributor

The FMLA prohibits an employer from terminating an employee for the employees absence from work  resulting from a serious health condition.  If the poor performance is the result of the absence, there may be an FMLA violation.  If the poor performance is unrelated to the absence, the FMLA may not protect you in this situation.  In addition, the Americans With Disabilities Act could be implicated by the circumstances you described.  You may want to consider filing a charge of discrimination with the EEOC or local Fair Employment Practices Agency, particularly if an accommodation was requested that was not provided.

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 9 years ago | Contributor

No, the Family and Medical Leave Act does nothing more than guaranty eligible employees, working for covered employers, the right to take up to 12 weeks of unpaid leave for medical reasons. It does not otherwise excuse poor performance, even poor performance due to the medical reason; so if you were not hitting sales targets, for example, you could be fired for that, even if you were eligible for FMLA leave. Again, all FMLA does is provide you leave.

The issue then is whether 1) you were in fact performing poorly, and so likely were fired due to it; or whether 2) you were actually fired as retaliation or punishment for taking FMLA leave, which is illegal. If, realistically, 1) is probably true, you may not have a case or claim; but if you think 2) is what happened, you may have a legal claim for unlawful retaliation and should consult with an employment law attorney


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