Deciding to terminate an employee is generally risky. But the risk level associated with terminating an individual who has requested leave under the Family and Medical Leave Act (FMLA) is markedly greater, as illustrated in one court case.

Plaintiff Terminated

The employer was a not-for-profit organization that provided programs and services to people with developmental disabilities. The employee was the finance and benefits coordinator whose job duties included assisting the organization’s clients in applying for and processing benefits under Social Security and the food stamp program.

According to court documents, while the employee was away on medical leave, the employer discovered that she’d failed to timely file certain benefits applications on behalf of its clients. As a result, many of organization’s food-stamp-eligible clients were no longer receiving benefits. Upon the employee’s return, she was given an opportunity to remedy the filing errors.

More than a year later, the organization again discovered that some food-stamp-eligible clients were no longer receiving benefits. The employee was given one final opportunity to improve her job performance.

About a year after this, the employee was involved in a car accident and went on FMLA leave for a little more than three weeks. During her leave, her co-workers discovered again that she’d failed to timely file paperwork on behalf of clients. The employee was placed on administrative leave and eventually terminated because of “unsatisfactory job performance.”

Entitlement Not Granted

The former employee sued in district court, alleging that her termination constituted unlawful interference with, and retaliation for, the exercise of her FMLA rights. She sought, among other things, declaratory and injunctive relief — including reinstatement and damages for back pay and lost benefits. The former employee cited her positive performance reviews and, as evidence that the employer’s reasons for firing her constituted retaliation, she claimed she wasn’t given a reason for being placed on administrative leave.

The district court granted the employer’s motion for summary judgment on both FMLA claims, finding that, even if the former employee hadn’t taken FMLA leave, she wouldn’t have been entitled to keep her job. Therefore, the employer hadn’t interfered with her FMLA rights in firing her. The former employee appealed.

Related To Performance

The U.S. Court of Appeals for the Fourth Circuit ruled in favor of the employer, finding that the fact the FMLA leave permitted the organization to discover the problems couldn’t logically bar its ability to fire the employee. Citing another earlier case, the court explained that “the FMLA does not require an employee to be restored to his prior job after FMLA leave if he would have been discharged had he not taken leave.”

As for the former employee’s retaliation claim, the Fourth Circuit analyzed it and stated she needed to establish that:

  • She engaged in a protected activity,
  • Her employer took an adverse action against her, and
  • The adverse action in question was connected to her protected activity.

The former employee claimed she was fired because she’d taken FMLA leave (the protected activity). The employer responded by pointing to the individual’s job performance and the decision to place her on administrative leave. Ultimately, the court found that the decision to terminate the plaintiff was related to her job performance — not her FMLA leave. (Mercer v. The Arc of Prince Georges County,No. 13-1300, 7/11/13)

Action Can Be Taken

Ultimately, this case was a positive for employers. If performance issues are discovered while an employee is on FMLA leave, you don’t have to ignore them. Corrective action can be taken. But tread carefully and consult your attorney before doing so.

© 2018