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FMLA Didn’t Bar Employer From Terminating Worker With Attendance, Performance Issues

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The federal Family and Medical Leave Act (FMLA) allows employees to take unpaid, job-protected leave to deal with a serious medical condition or to care for a family member with such a condition. To be eligible for FMLA leave, a worker needs to have worked at least 1,250 hours during the 12 months prior to the leave and work at a location where the employer has at least 50 employees within 75 miles. A worker also needs to have been with the employer for 12 months.

It’s illegal for an employer to discourage a worker from taking FMLA leave or to retaliate against an employee for taking leave. But a recent Iowa case underscores that the FMLA does not protect a worker from getting fired for poor attendance or bad performance.

That case involved a Drake University employee with multiple sclerosis who had worked for a number of years without requesting FMLA leave.

A new dean arrived at the school and soon became displeased by the employee’s allegedly erratic schedule and performance.

At this point the employee asked for FMLA leave for the first time, which was approved.

After that, the employee missed work time for non-FMLA-related reasons and on some occasions did not inform the dean of her absences.

When the dean continued to speak with the employee about her attendance and performance concerns, the employee complained of harassment.

She was subsequently put on a performance improvement plan that required her to give notice of any absences. The employer kept her FMLA leave time separate in its recordkeeping and documented all performance and absence issues.

When those issues didn’t improve, Drake terminated the employee, who then sued the university claiming FMLA retaliation.

The case reached the 8th U.S. Circuit Court of Appeals, which ruled in Drake’s favor, noting that the university thoroughly documented legitimate reasons for the termination while the employee provided no evidence that the university’s explanation for the firing was a pretext for discrimination or retaliation. Most noteworthy, the court explicitly stated that an employee who takes FMLA leave has no more protection against being fired for reasons unrelated to the FMLA than any other employee.

If there’s a lesson for employers to take from this case, it’s to document performance and attendance issues the way Drake did, and to check in with an attorney to ensure a particular termination won’t leave you vulnerable to a lawsuit.