Tardies can be FMLA leave (Yes, Virginia, you may be late)

Virginia was often late to work due to her health problems. She began taking leave under the Family and Medical Leave Act (FMLA) for her worsening conditions as soon as she met the eligibility criteria on October 9, 2018. The company approved her FMLA request on that date.

Performance Improvement Plan issued

Virginia's supervisor issued her a Performance Improvement Plan ("PIP") the same day her FMLA leave was approved. The PIP was meant to help her, among other things, report to work on time in compliance with the company's attendance policy. Virginia subsequently, however, received verbal and written disciplinary warnings for arriving late to work more than eight dates after October 9.

On her PIP, Virginia's supervisor noted that "FMLA [leave is] not to be applied to Tardy occurrences."

Employee terminated and sued

On August 9, 2019, Virginia was terminated based on, in part, her previous disciplinary warnings related to her behavior and performance, such as poor attendance. She sued.

Arguments presented in court

The court took issue with the employer on two main factors in the case:

1. The supervisor's comment, indicating that it discouraged Virginia from asking for leave for being late after October 9; and
2. Because Virginia received verbal and written disciplinary actions for being late.

The company argued that Virginia was not entitled to leave until her FMLA intermittent leave was approved on November 6, 2018, and therefore it was correct in considering her tardy arrivals before that date as violations of its attendance policy. Unfortunately, however, the company admitted in its answer to Virginia's complaint that her FMLA request "was approved beginning on October 9, 2018."

The appeals court allowed the FMLA claim to proceed based on the supervisor's comment.

The bottom line

This is another case that illustrates the importance of supervisor FMLA training. Had this supervisor known that employees may use FMLA leave in small increments, allowing them to be late (or leave early) for a qualifying reason (such as an employee's own serious health condition), this employer would not have needed to spend the time and resources defending its actions.

Adams v. Columbia/HCA of New Orleans, Inc., Fifth Circuit Court of Appeals, No. 22-30389, March 3, 2023.

Key to Remember: Employees may take FMLA leave in small increments. Being late to work due to a serious health condition, in fact, is protected. Supervisors should be trained on these FMLA basics.