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FMLA doesn’t protect employee from all attendance, performance issues

While the Family and Medical Leave Act allows covered employees to take qualifying leave for their own or a family member’s serious health condition, it does not protect an employee from all issues related to performance and absences from work, a federal appeals court has ruled.

In the case at hand, a Drake University employee who has multiple sclerosis worked for many years without requesting FMLA leave.

A new dean began at the school and expressed unhappiness with the employee’s erratic schedule and performance. The employee then requested FMLA leave for the first time, which was approved.

Following that, the employee missed work time for reasons not covered by FMLA. On some occasions, she failed to inform the dean of those absences.

After the dean continued to speak to the employee about her attendance and performance issues, she complained of harassment on multiple occasions.

The employee was subsequently given a performance improvement plan (PIP), which included specific requirements related to giving notice of any absences. Her FMLA leave time was kept separate from her other absences, and all of her performance issues and absences were documented.

The employee’s performance and absence issues did not improve, and she was then terminated.

She sued the university, claiming that it violated FMLA and the Americans with Disabilities Act (ADA).

The 8th U.S. Circuit Court of Appeals disagreed.

It found that the employee failed to provide evidence that the employer’s explanation for termination was pretext for discrimination or retaliation under the FMLA or ADA.

The court found that the employer established “a robust, well-documented set of legitimate reasons” for firing the employee: “a plethora of performance deficiencies … as well as non-FMLA tardiness and attendance problems.”

“[A]n 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 court said. “Otherwise, a problem employee on thin ice with the employer could effectively insulate herself from discipline by engaging in protected activity.”