“I currently have an employee on a leave of absence who is due back in three weeks. We don’t want her back. While she’s been gone, we have found so much that she didn’t do well or even do at all. Is it okay to tell her we don’t want her back?”
Your HR Survival Tip
All too often we hear from companies that an employee on leave isn’t welcome back. Nearly every time we have to say it’s not the company’s choice, it’s a legal requirement. The question companies should really be asking is why the employee’s return to work is a problem.
A common situation: Sally has been employed for two years by the company. She is legally eligible for a CFRA (CA Family Rights Act) leave of absence of up to 12 weeks off that includes job protection. About one month into the leave, we get a call from the employer. They have discovered Sally hasn’t been doing her work in a timely manner; the quality of her work turns out to be below the level expected; they even found a few things in her desk that don’t appear to have been done at all but were due months ago; and it turns out the workplace actually feels friendlier without her around. They don’t want her back due to her work performance and attitude. How can they terminate her?
Unless you already had several writeups or a performance improvement plan in place before Sally left on her leave, you’re stuck. The law is very clear that, once her leave is over, you must return her to the same or similar position. In fact, you can’t just immediately write her up and plan to terminate her upon her return because it will usually be viewed as possible retaliation for her taking the leave. Sally is in a legally protected bubble. She needs to return to work and then you can, over time, work on her performance.
Do you understand Sally isn’t even the real problem? The real problem is Sally’s supervisor who didn’t have checks and balances in place to notice Sally’s performance was below par long before she went on leave. No matter how long someone works for you, you need to make sure the work is still being done on time and at the expected level. People sometimes slow down or get a bit lax with their work and it’s up to the supervisor to ensure this isn’t happening… or is being corrected when noticed. Assuming an employee is doing everything perfectly at all is a bad management technique for a supervisor. Why wasn’t that supervisor meeting weekly with Sally to see what she was working on, whether there were problems, and to provide feedback? If the work was important, why weren’t the problems discovered before someone went digging through Sally’s desk?
Supervisors need to actually supervise their people. As soon as problems with someone’s work are discovered, it’s time to start making corrections. It becomes a very frustrating problem when the discovery only happens because that employee is on a leave. Most leaves of absence will protect the employee and tie your hands. Instead of focusing just on Sally, start looking at how well your supervisors are doing their own job because Sally’s supervisor should take as much responsibility as Sally. Don’t assume getting rid of Sally will actually fix your problem. Sally’s leave merely brought attention to the bigger problem.
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