Key to remember: An employee can’t be totally disabled and argue that he can return to work.

Applies to: ​Private employers with 50 or more employees and all public employers.

Impact to customers: An illustrative case to help customers know when they may succeed in defending a termination when an employee took FMLA leave.

Case in point

Tom had worked for the company for over 30 years. At one point, he suffered a non-work injury and needed to have a knee replaced. He asked for FMLA leave for the procedure, which was granted. The company approved only 12 weeks of leave, meaning that Tom was expected to return to work on August 1, when the 12 weeks were exhausted. Tom was expected to provide a fitness-for-duty certification before returning to work.

Things got interesting when Tom’s doctor scheduled his return to work appointment for August 12. Once he learned of this, Tom called the company, and they agreed to extend the leave until August 12. Around August 9, his doctor then rescheduled the appointment for some time in September. Tom sought an earlier appointment, but the closest one he could get was August 17.

At first the company was OK with extending his leave. Tom’s supervisor, however, was not, and voiced his position with the HR department. In turn, the HR department terminated Tom as of August 12.

Being newly unemployed, Tom filed for SSDI benefits though the Social Security Administration (SSA). There, he claimed that he was unable to work because of his disabling condition, and that he was still disabled. The SSA deemed him eligible for benefits.

About a year and a half later, Tom sued his company, arguing that his termination was in retaliation for taking FMLA leave. The employer argued that it fired Tom only because he failed to comply with the company’s policy that employees on leave due to a serious medical condition provide a fitness-for-duty certification upon completing the 12 weeks of FMLA leave in order to return to work. When told that his leave had ended, Tom did not provide the certification.

In court, Tom could not argue that he was able to return to work albeit the delayed doctor appointments, and that he was totally disabled by the SSA. He could not have it both ways.

The court sided with the employer, despite the short time between Tom’s FMLA leave expiring and his termination. The timing was consistent with the company’s explanation that Tom was fired because he did not return to work with the fitness-for-duty certification on August 12 after he had been told his leave was over.

If you’re wondering about providing more leave as a reasonable accommodation under the ADA, Tom had sued for that, too. The court found that, because he was deemed unable to perform any work by the SSA, he was not a qualified individual under the ADA.

Thompson v. Gold Medal Bakery, Inc., 1st Circuit Court of Appeals, No. 20-1027, March 2, 2021