We found numerous, significant errors by an employee while she was out on FMLA. The employee was on leave for mental impairments that are considered disabilities under the ADA. (When she returned from leave, she was transferred to another office pending further investigation of the errors.) Can we terminate her for her performance prior to her FMLA leave?
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It is illegal to punish or otherwise retaliate against an employee for exercising the right to FMLA leave; however, this does not mean that employees who have taken FMLA leave are exempt from workplace performance standards.
As long as the employee’s performance problems are not related to his/her medical leave, then these errors may be addressed just as they would be for any other employee.
In other words, if an employee fails to meet a monthly sales quota because she is out on protected FMLA leave, then this employee cannot be disciplined for failure to meet the quota because the inability to do so was caused by her absence from work. However, if the employer discovers that an employee was simply neglecting essential job functions or making errors unrelated to the absence from work, then this should be handled just as it would if the employee had not been on leave.
With this in mind, since you noted that the employee’s leave was taken for an ailment that is also protected by the ADA, you may also need to consider whether the errors were related to that disability and, if so, whether the employee may have given notice of a need for reasonable accommodation for that disability.
Employers are not required to withhold or rescind discipline for performance problems that occurred before (or absent) a request for accommodation under the ADA. However, if the employee had indicated a need for accommodation before the errors occurred, but an interactive process was not conducted to determine whether an accommodation was available that would allow the employee to accurately perform the functions of her job, then the employer should engage in that process before taking disciplinary action.
You may also find this EEOC guidance document on Applying Performance and Conduct Standards to Employees with Disabilities helpful.