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- No. But it is stated that you can’t terminate in reprisal for taking a leave. I know that’s not what you’re doing, but the timing raises a red flag and you’re going to need thorough documentation of your legitimate reason to terminate, i.e., the employee’s performance issues. Based on case law, it may be difficult to defend termination for performance unless you can show you gave the employee clear and adequate warning and an opportunity to correct his performance issues. If this is the first time performance problems have come up, you’ll be in a pretty tough spot.