As a general rule, employers are not able to terminate an employee for being absent due to incarceration or having to leave work in order to attend one’s trial. But there are exceptions to the rule if an employee’s alleged off-duty conduct negatively impacts the workplace. Prior to terminating an employee, however, it is important for the employer to conduct an investigation and effectively demonstrate that the employee’s continued employment represents a serious and immediate hardship to business interests. Five guiding principles in reaching the decision include: guilt or innocence is irrelevant, a bona fide attempt to assess the risk of allowing the employee to remain in the workplace, the onus is on the employer to prove risk, looking for alternative work for the employee and reviewing the decision in light of new developments.
