HR Management & Compliance

FMLA Training Scenario: Performance Issues Discovered During Leave

Here we present a leave-related workplace scenario—inspired by an actual court case—that’s intended to help HR professionals better understand an employer’s responsibilities under the Family and Medical Leave Act (FMLA).  In this scenario, when an employee went on leave, her coworkers learned that she was not executing important administrative tasks related to her position.  Based largely on what they found during her absence, they suspended and then ultimately fired her.  Was this legal?

bad performanceThe Facts

Betsy works for a nonprofit that provides programs and services to individuals with developmental disabilities. In particular, she is responsible for completing and submitting initial applications for benefits for her clients, including applications for social security disability and food stamps. Betsy, unfortunately, has had a history of performance problems dating back about 5 years related to poor work performance and poor time management.

About 2 years ago, Betsy took medical leave and while she was gone her coworkers performed her work. They discovered that many food-stamp-eligible clients were not receiving benefits because Betsy hadn’t submitted the necessary paperwork. When she returned to work, Betsy was instructed to make sure the paperwork was submitted and benefits were renewed.

A year and a half later, she was given a satisfactory performance review, but Betsy’s employer soon learned that certain food-stamp-eligible clients were no longer receiving benefits. Betsy was instructed to clear up the paperwork, but was not given a formal reprimand.

Approximately 1 month later, Betsy was involved in a car accident and was out of work on FMLA leave for more than a month due to her injuries. While she was out on leave, Betsy’s coworkers again performed her job and discovered that many more clients were no longer receiving benefits because Betsy had failed to submit the necessary paperwork.

When Betsy returned to work, she was placed on administrative leave pending an investigation into unsatisfactory job performance and incomplete paperwork. At the end of her 5-day suspension, Betsy was terminated.

Betsy filed a lawsuit in federal court claiming the employer had unlawfully interfered with her exercise of FMLA rights and retaliated against her for taking FMLA leave.

The Law

In Mercer v. The ARC of Prince Georges County, Inc., LLC, 532 Fed. Appx. 392 (4th Cir. 2013) (the case that inspired this hypothetical), the Court of Appeals for the Fourth Circuit granted summary judgment for the employer on claims of interference with FMLA rights and retaliation.  The court noted that “being on FMLA leave does not provide an employee any greater rights than he or she would have had without taking leave, and an employee’s right to reinstatement is not absolute.” Id.

Under FMLA, it is unlawful for an employer to interfere with, restrain, or deny the exercise or attempt to exercise any right provided under the FMLA. To succeed on an interference claim, an employee must show that (1) he was entitled to FMLA leave, (2) an adverse action by his employer interfered with his right to take FMLA leave, and (3) this adverse action was related to the exercise or attempted exercise of the employee’s FMLA rights. The employee need not establish that the employer intended to interfere with his FMLA leave. An employer has a defense to an interference claim if it can establish that the employee would have been terminated anyway.

In order to establish a claim of retaliation under the FMLA, an employee must establish a prima facie case including that (1) the employee engaged in protected activity, (2) the employer took an action that a reasonable employee would have found materially adverse, and (3) there is a causal connection between the protected activity and the adverse action. The burden then shifts to the employer to establish that it had a legitimate, nondiscriminatory reason for the termination. The burden then shifts back to the employee to show that the employer’s reason is a pretext for discrimination.

Questions

1. Was it a violation of the FMLA to place Betsy on administrative leave pending an investigation of her job performance instead of restoring her to her position?

Betsy is only entitled to the rights she would have had if she had not taken FMLA leave. She does not have an absolute right to reinstatement. She must be able to show that she would have remained employed if she had not taken FMLA leave.

2. Did the employer interfere with Betsy’s rights by terminating her employment based on information it only discovered because she was on leave?

The question is whether the employer can rely on information related to performance issues that it only became aware of because the employee was on leave. Indeed, Betsy’s last performance review was satisfactory and she had some performance issues a month or so before her accident and, in her mind, was not disciplined. Despite her long history of similar performance issues, her employer did not take action until she was ready to return from leave.

The court in Mercer v. The ARC of Prince Georges County, Inc., LLC, the case on which this fact pattern is based, stated that the “fact that the leave permitted the employer to discover the problems [with an employee’s performance] cannot logically be a bar to the employer’s ability to fire the deficient employee.” Mercer at 397; quoting Kohls v. Beverly Enters. Wis., Inc., 259 F.3d 799, 806 (7th Cir. 2001). 

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