The FMLA does not protect employees from termination for unrelated reasons (like performance)


Blink twice if you know (or at least suspect) a poor-performing employee who complained about discrimination or sought leave under the Family and Medical Leave Act to insulate herself from discipline at work.

I’m not saying that’s what the plaintiff did in this recent Eighth Circuit decision. But then again, her decision to take FMLA leave didn’t insulate her from the repercussions of her poor job performance either.

Let’s backtrack, and I’ll explain.

The plaintiff worked for the defendant for 28 years. In 2004, the plaintiff was diagnosed with multiple sclerosis and chronic back and neck pain. She worked through her conditions for a while without needing to take any FMLA leave. And the plaintiff’s supervisor was unaware that the plaintiff had MS until at least September 2018 — and certainly didn’t know that it contributed to the plaintiff’s earlier erratic work schedule, which interfered with her job performance.

The following June, the plaintiff’s supervisor wrote her up for making mistakes in her work, missing deadlines, inconsistent attendance, and taking vacation time without prior approval. The memo also listed expectations for improvement. However, the supervisor — remember, she now knew about the plaintiff’s MS — emphasized that her attendance concerns did not include protected FMLA or medical-related absences.

The following month, the plaintiff filed a formal harassment complaint against her supervisor, but the defendant did not formally investigate it, contrary to its policy.

Instead, HR met with the plaintiff to discuss her FMLA leave and performance deficiencies. HR ensured that the plaintiff could take FMLA leave when needed without any repercussions. But, HR also made clear that “failure to achieve immediate and sustained improvement in [her] performance could result in further disciplinary action.” The plaintiff thought that the plan was “good.”

A few months later, the defendant ended her employment when the plaintiff’s performance did not improve. In the termination meeting, the plaintiff’s supervisor cited ongoing performance deficiencies and failure to improve following the earlier meeting as reasons for termination.

The plaintiff later sued, alleging that the defendant had terminated her in retaliation for taking FMLA leave. (The FMLA makes it unlawful for “any employer to discharge or in any other manner discriminate against any individual for opposing any practice made unlawful” by the FMLA.)

The court noted that the defendant had established “a robust, well-documented set of legitimate reasons for [the plaintiff’s termination.” And the plaintiff did not dispute them.

So, how the heck was she going to prove her case?

Timing? Not really. The plaintiff’s supervisor complained about the plaintiff’s performance deficiencies at least a month before she knew about the plaintiff’s MS and the need for FMLA leave. Additionally, the harassment complaints coincided temporally with the plaintiff’s poor performance and non-FMLA attendance issues.

What about the defendant’s failure to follow its harassment-complaint policies? Perhaps, except the deviation was slight, and the plaintiff confirmed that the plan was “good.”

Now, go back to the title of this blog post.

An employee who exercises her rights under the FMLA has no greater protection against termination for reasons unrelated to the FMLA than she did before doing so. The plaintiff did not dispute that her employment record was replete with documented performance deficiencies and unexcused attendance issues. Thus, her termination was justified.

You can do the same thing in your workplace. Remember to document those performance issues. Push back on managers who have failed to do so.

Another good practice is to segment the performance issues from FMLA usage. Reinforce that the latter is ok, but don’t excuse the former generally.

Finally, consider that poor-performing employees with health issues may need an accommodation to perform the essential functions of the job. The onus is generally on the employee to identify the disability and request an accommodation. However, absent initiation from the employee, the words “how can we help you?” are still perfectly legal.

“Doing What’s Right – Not Just What’s Legal”
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