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.
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."
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.
The court took issue with the employer on two main factors in the case:
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.
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.
This article was written by Darlene M. Clabault, SHRM-CP, PHR, CLMS, of J. J. Keller & Associates, Inc. The content of these news items, in whole or in part, MAY NOT be copied into any other uses without consulting the originator of the content.