By Attorney Thomas B. Mooney, Neag School of Education, University of Connecticut

The "Legal Question of the Week" is a regular feature of the CAS Weekly NewsBlast. We invite readers to submit short, law-related questions of practical concern to school administrators. Each week, we will select a question and publish an answer. While these answers cannot be considered formal legal advice, they may be of help to you and your colleagues. We may edit your questions, and we will not identify the authors. Please submit your questions to: legalmailbag@casciac.org.

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Dear Legal Mailbag:

One of the paraprofessionals in my school has had a long history of poor attendance. She works with special education students and we are very concerned about the impact that her absences have on the students she is supposed to serve. Last fall, we sat her down with her union representative and warned her that she must improve her attendance or she would be fired. Our warning worked for a while, but last week she came in with a doctor’s note and requested Family and Medical Leave Act (FMLA) leave to get a hip replacement. From my vantage point, she should have waited until the summer for the surgery, and, frankly, I have had it. Can I fire her now?

Signed,
Ready and Willing


Dear Ready:

Not so fast. To be sure, you can require satisfactory attendance of all employees and, after appropriate warning, you may be able to terminate the employment of an employee for excessive absence. However, when an employee is eligible for and receives leave under the FMLA, you must be careful. The FMLA includes a prohibition against retaliation for using leave granted pursuant to its terms. If you went ahead and terminated this employee for an absence that is covered by the FMLA, she would have a retaliation claim against the district. You should cool your jets for now, and you must exclude from consideration any of her absences during protected FMLA leave.