Employment Law FMLA and ADA?

[darrick34]

I employ a full time nurse, She has been given several written warnings because she has upset clients, referral sources and staff with what she says, and how she says it. It has been a severe problem. I met with her and put her on our performance improvement plan, and demoted her and reduced her responsibilities. Later that day she disclosed that she was very depressed and anxious, and that she would be taking a leave to deal with her mental health. My company has over 50 employees so we are subject to the Family and Medical Leave Act. My company and the employee did not follow the process and do the paperwork for the FMLA, because we did not realize it was required. In any event, she has been out more than 12 weeks. She now has a doctors note that says she can return to part time work at the end of this month.

Based on her behavior, we dont feel that her mental health should allow her to return to work., In addition, even is her mental health was better, we dont want her to work at our company any more due to the damage she did with our clients, referral sources, and employees. We were planning on terminating her if she did not meet the improvement plan goals, but she left before we could do that

We dont want her to come back. We can either challenge her doctors return to work note , or terminate her for cause. If we take either of those actions, will we violate the FMLA , the ADA or other federal employment acts? She has never requested a work accomidation. Thanks

[abisha]

You can't violate FMLA, b/c she didn't HAVE FMLA. She was out more than 12 weeks anyway, so point is moot. She is not covered under ADA.

[sebastiano53]

This is what you get for dragging your feet on firing people. Anyone who gets "several written warnings" should have been fired months ago.

I would go ahead and fire her, just make sure you keep the benefits available through the FMLA period. Your paper trial should support your action.