Key to remember: Employers need to tread carefully before deciding to terminate an employee for job performance issues found while the employee is on FMLA leave.

Applies to: Private employers with 50+ employees, and all public employees.

Impact to customers: The case illustrates what employers should not do if they want to terminate an employee for job inefficiencies.

Possible impact to JJK products/services: This article will run on the FMLA Manager.

Every now and then, employees go out on leave, and during that leave, employers discover that the employee hasn’t been performing the job as expected. In these situations, employers have some options, but they need to tread carefully.

Case in point

Jason had been performing fine for several years and received promotions along the way. When Dierdre, a new supervisor came along, however, he received a below expectations rating. He responded to the criticisms and was upgraded to a satisfactory rating. Soon thereafter, Jason requested leave for a medical procedure. Jason began the leave, and all was going fine until Diedre discovered that Jason appeared to have neglected some of his job duties, including having 2,700 unread emails, some of which needed responses, and even paying vendors.

While Jason was still on leave, Dierdre notified him about the discovery, and that an investigation was being undertaken. Jason was also told he would have an opportunity to provide an explanation when he returned to work, but his actions were serious and could result in termination.

A week later, still while Jason was on leave, his job was posted as vacant. Before Jason returned, Dierdre left the company. Jason tried to return to work after his leave but was not permitted to do so. Instead, he had a meeting with Frank, Dierdre’s replacement, and was told he was being placed on administrative leave. About two weeks later, Jason was terminated for his performance issues. Jason sued.

Jason argued that the reasons for his termination were pretext and that the real reason was his taking FMLA leave. The employer argued that Jason wasn’t denied any FMLA rights as he was terminated after he returned to work.

The court took issue with some of the employer’s actions in the case:

• First, the employer terminated Jason soon after leave, which can be seen as evidence of a causal link between the leave and the termination. 
• Second, the employer posted Jason’s job as available while Jason was still on FMLA leave and before the decision to terminate was made. 
• Third, the sudden change from Jason’s fine job performance to one that qualifies for termination. 
• Fourth, the fact that Jason was not given the reported chance to explain the situation, as promised. Because of these suspicious actions, the employer was denied summary judgment. 

The details of this case stand as a reminder that, while employers may generally terminate an employee on FMLA leave for legitimate non-leave reasons, they need to be cognizant of their actions along the way. This employer took some steps that undermined their argument that Jason’s job performance was the reason for his termination.

Kibbie v. Hays Consolidated Independent School District, W.D. Texas, No. A-19-CV-393, April 7, 2020.