FMLA Articles

Key to remember:  ​Terminating an employee after return from FMLA leave may be done, but the reason for the termination should be justified by evidence and not point to retaliation for taking leave.

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

Impact to customers: A cautionary tale of an employer who failed to look at the big picture when it came to terminating an otherwise solid-performing employee who had taken FMLA leave.

Lindsey had been a strong-performing employee for 17 years when she needed FMLA leave. Even while on the leave, she voluntarily continued to perform some of her job responsibilities and told her coworkers to contact her if they needed anything. She also talked to David, her manager, via email and text about various work-related issues.

Shortly after she returned to work, Lindsey had a work process disagreement with a coworker. David responded by issuing a corrective action form that indicated he had received reports from other employees that Lindsey “wasn’t at work” before she took leave several months earlier. The corrective action form did not, however, list any specific dates.

A few months later, Lindsey was issued a second corrective action form that indicated her attendance was beginning to slip again. This warning cited three specific incidents of Lindsey’s absenteeism. The first was when David was unable to reach Lindsey by text message because she had left her phone on her desk while she was working elsewhere. The second was when Lindsey advised her secretary — but not David directly — that she would be out sick. The third was when some coworkers told David that they had been unable to locate Lindsey that morning; she was attending a training session.

Lindsey began to feel like she was being penalized because she took FMLA leave.

Soon thereafter, Lindsey was assigned a project that included monthly reports. She believed the due dates were suggestions, and she repeatedly provided the reports later than suggested.

David, his manager, and the company’s HR manager met to discuss the situation and decided to terminate Lindsey. She sued.

Lindsey argued that she was terminated in retaliation for taking the FMLA leave, and the court found that she had produced enough evidence to conclude that the company’s attendance-based justification for the termination was not the real reason. The court pointed to the following:

• Lindsey received her first disciplinary action in 17 years only three weeks after she took leave.
• The initial corrective action failed to list any dates that she missed work.
• The second corrective action listed only three incidents, and none of those were very convincing as Lindsey had reasons for the absences, from being sick to attending training.

In regard to the late reports, there was evidence indicating that the employer wouldn’t have fired Lindsey for the missed deadlines alone. It did not point to any adverse impact that Lindsey’s tardy reports had on the company. Rather, the termination documents focused on her attendance.

The case was allowed to proceed.

The employer would likely have fared better had it not jumped the gun in terminating Lindsey, but looked at the big picture, including her work history. It might have given Lindsey corrective action for failing to timely submit the reports, instead of simply firing her. It also failed to follow its own progressive discipline policy.

Lindsey v. Bio-Medical Applications of Louisiana, L.L.C., 5th Circuit Court of Appeals, No. 20-30289, August 16, 2021.