Yes, you may terminate an employee who takes FMLA leave
Employer documented employee’s poor performance
Betty began working at the hospital in 1995 and was promoted in 2012. At the time she was promoted, she was already on intermittent FMLA leave, and the company understood that she would need to take additional FMLA leave. The promotion came with some changes, including “on-call” shifts. An on-call shift required her to be accessible while off-duty during the shift. During an on-call shift, an employee was to report to work within approximately 30 minutes of receiving an emergency call-in.
Betty had some issues regarding the call-in requirements. Because employees were needed to provide care when called in, the hospital took the requirement seriously. Betty was reprimanded on multiple occasions for failing to respond appropriately to emergency call-in requests. Consequently, she was prohibited from signing up for additional on-call shifts because of her repeated failures to respond appropriately when contacted. Each time Betty was reprimanded, she was counseled on appropriate on-call procedures and reminded that any additional occurrences could result in further disciplinary action, including discharge.
Betty had other performance issues, as well, including leaving the operating room while a procedure was ongoing for an extended amount of time without letting anyone know of her need to leave the room. These issues garnered some complaints from coworkers. Betty, however, attributed these complaints to be because of her increased FMLA leave.
Betty asserted that one of her co-workers told her that she “needed to watch herself” with regard to her FMLA usage. She also viewed a supervisor’s inquiry about whether she could schedule doctor’s appointments during off-duty hours as a complaint or concern about her FMLA leave usage. Betty believed it was because of her FMLA leave that she was being treated differently than other employees for what she viewed as minor infractions. She was eventually fired, and she brought an FMLA retaliation claim against her employer, claiming that she routinely suffered adverse employment actions following the exercise of FMLA leave.
Betty’s claim failed, however, because she could not establish that her termination was motivated by the exercise of FMLA rights. She used FMLA leave frequently with no negative consequences. The employer wisely documented Betty’s failure to follow on-call policy and other work performance issues, counseled her, and reminded her of the potential consequences, including termination.
Betty’s alleged mistreatment was not so extreme as to support her FMLA retaliation claim. While there was a temporal connection to her leave and her termination, that alone was not enough. The company, on the other hand, showed that it had legitimate, nondiscriminatory reasons for her termination, and the court ruled in its favor.
Beckley v. St. Luke’s Hospital, Eighth Circuit Court of Appeals, No. 18-2643, May 16, 2019.
This article was written by Darlene M. Clabault, SHRM-CP, PHR, CLMS, of J. J. Keller & Associates, Inc. The content of these news items, in whole or in part, MAY NOT be copied into any other uses without consulting the originator of the content.
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