By: Sean F. Darke, Esq.
Employers have every right to discipline an employee who is on leave under the Family Medical Leave Act. All too often, employers are afraid to discipline an employee who is on FMLA leave because they fear that the employee may file a retaliation charge or other action against them. Remember that employees are not entitled to any right, benefit, or position of employment that they would not have been entitled to if they had not taken FMLA leave.
The Seventh Circuit Court of Appeals recently held that an employee on FMLA leave is not automatically shielded from discipline, including termination. The court was presented with a situation where a vice president began to have issues with another employee, which ultimately led to a corrective action. The vice president requested and was granted time off under the FMLA. While the vice president was on FMLA leave, the employer discovered multiple deficiencies in his job, including key responsibilities that he had just failed to perform, and which were serious enough to warrant termination. The vice president filed suit, contending that the employer was required to reinstate him from his FMLA leave before terminating him, and that it retaliated against him. The Seventh Circuit disagreed, holding that employees are only entitled to the position to which they would have been entitled absent the FMLA leave, and the fact that the employer discovered their deficiencies during their FMLA leave is irrelevant.
Employers must recognize that disciplining employees on FMLA leave is a risky proposition - but it should not discourage them from implementing and applying established policies and procedures, especially any progressive discipline policies. When evaluating whether an employee who is on FMLA leave should be disciplined, simply treat the situation the same as if the employee were not on FMLA leave. As always, it is also a good idea to discuss the situation with legal counsel prior to taking any such action.
Questions? Please contact WS Senior Attorney Sean F. Darke at (312) 629-9300 or sedarke@wesselssherman.com.
