Two tricky FMLA leave situations

by on January 15, 2010 · 2 Comments POSTED IN: HR Info Center

How do employers handle sticky situations?

FMLA leave or performance problems?

Supervisor Corina Costa really liked Andrea Watson, and having to fire her was heartbreaking.

“I just came back from FMLA leave for mental illness and you’re firing me?” said Andrea.

“I know it seems cruel,” said Corina. “But while you were out we found dozens of mistakes you made prior to leaving. It’s been terribly damaging to the company.”

My illness made me do it

“I made those mistakes because of my illness,” said Andrea. “I’m better now.”

“Well, before you went on FMLA leave we documented your performance problems and gave you warnings,” replied Corina. “We’ve long had doubts about your competence and have no confidence the problems won’t continue.”

“You can’t fire me just after I took FMLA leave,” said Andrea. “If you do, I’ll sue for retaliation.”

That’s just what Andrea did. Did she win?

The decision

No, Andrea lost her case. Her claim that her depression led to her poor performance didn’t sway the court.

In issuing his ruling, the judge stated, “While it may be true that the problems were a result of her illness, the FMLA does not protect an employee from performance problems caused by the condition for which FMLA leave is taken, nor does it require that an employee be given the opportunity to show improved job performance when not ill.”

Two key lessons learned

As a supervisor you’d normally hesitate to take any adverse action against an employee just returning from FMLA leave.

But this important case shows two things:

  1. That employees can’t use their injuries or illnesses as an excuse for not getting the job done. The courts recognize that your company needs to be competitive, and that requires employees who can perform the functions of their jobs no matter what.
  2. That you can take adverse actions against “protected” employees as long as you would have taken those actions even if they weren’t protected. In this case, the company had documented evidence that it would have fired Andrea regardless of her mental condition or the fact that she took FMLA leave.

Cite: McBride v. Citgo Petroleum Corp., U.S. Court of Appeals, 10th Circuit, No. 01-5039

First she didn’t want FMLA leave, then she did

Employee rights under job-protection laws are extensive, but they’re not unlimited. Some important restrictions apply. As this case shows, however, without well-informed supervisors companies can easily lose the protection these restrictions should provide.

“You’re sure you don’t want to come back, Janie?” Supervisor Mike Clark asked Janie Porter as she packed up her personal items on her last day on the job. “You’ve been here more than three years, so under the FMLA you’ve got the right to keep your job.”

“I’ve never been so sure of anything in my life,” Janie replied happily.

Janie was facing some serious surgery. But if everything went well, she and her boyfriend were planning to move to California for a “fresh start.”

The surgery was a complete success but the romance flopped. So a month later Janie returned to ask for “her job” back.

“We’ve filled it, Janie,” Mike told her apologetically. “If I’d only known you’d want it back I’d have tried to hold it open. But you told me….”

‘Never Mind That’

“Never mind what I told you,” she interrupted. “You said I had reinstatement protection under the FMLA, and now you’re saying I don’t?”

Mike called HR to see if there were any comparable openings for Janie. There weren’t, and with that she launched a suit against the company for violating her rights under the FMLA.

Job guaranteed after FMLA leave?

Her lawyer argued that Mike’s having offered her FMLA leave was enough to guarantee her the job if she decided to seek reinstatement.

But the company had a defense that stopped her suit cold in court: Mike’s written record of his final interview with Janie.

Complete with date, time and location, the record showed that Mike had advised her of her FMLA rights and that she had declined to exercise them.

Employee responsibilities

The court sustained the company’s argument that once she had been advised of her rights it was her responsibility to decide whether or not she wanted to apply for FMLA leave to guarantee reinstatement.

Remember, there are basic rules to follow whenever employees approach you about the need for an FMLA leave to take care of their own medical problems or those of a covered dependent:

  • If employees are eligible for FMLA leave you should tell them, regardless of whether or not they request it when applying for a leave. Check with HR to determine eligibility. Avoid saying yes or no until you’re certain about their eligibility. Not all health problems or family members are covered by FMLA. There are also gray areas that should be left to HR to interpret.
  • Always make a written summary of any conversation concerning medical leaves, especially if a covered employee declines FMLA leave. As this case illustrates, situations change and many ex-employees change their minds after refusing leave.

Sanders v. May Department Stores

2 Comments on This Post

  1. Clay Voegtle
    March 1, 2011 - 10:02 pm

    What if an employee works for a business for over 10 years. then the business terminates the department (a mail room) but hires another business to run it and the new business hires the same employees and the work is still done in the same exact location. Does the ten years count if someone needs family leave for an unexpected family illness or are they out of luck if the illness arose before a year elapsed after the changed emloyer status?

    • Anonymous
      March 2, 2011 - 3:07 pm

      Thanks for your comment. We can’t respond to questions about specific
      situations or provide legal advice, but we invite other readers to post
      comments or responses to this question. We encourage you to seek guidance
      from your HR department or, for legal questions, consult an attorney.

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