An Employee “on Thin Ice” Cannot Insulate Herself with the FMLA.


The Family and Medical Leave Act protects the use of qualifying leave for an employee’s (or their family member’s) serious health condition – but does not insulate the employee from all attendance and performance issues, as the U.S. Court of Appeals for the Eighth Circuit recently reminded employers.

In Corkrean v. Drake University, an employee with multiple sclerosis worked for many years without requiring or requesting FMLA leave. But when a new dean arrived, she was unhappy with the employee’s performance and erratic work schedule. At that point, the employee requested and was approved for FMLA. However, she continued to miss time for non-FMLA reasons, sometimes without notifying the dean. The dean continued to counsel her for both attendance and performance, and in turn, the employee repeatedly complained of harassment by the dean in connection with the counseling. The employee was eventually put on a PIP that set out specific absence notice requirements that were intended to address her harassment concerns. She was also told that her FMLA absences were separated from her other absences. She was subsequently terminated for her continuing performance and attendance issues. She sued, alleging violations of the FMLA and Americans with Disabilities Act.

The Eighth Circuit rejected her claims, finding that the employee offered no evidence that the employer’s explanation for termination was pretext for discrimination or retaliation under the FMLA (or ADA). Instead, the employer established “a robust, well-documented set of legitimate reasons” for termination – “a plethora of performance deficiencies … as well as non-FMLA tardiness and attendance problems” for which there was a months-long performance improvement process. Notably, the Eighth Circuit observed that “an employee who exercises her rights under the FMLA has no greater protection against termination for reasons unrelated to the FMLA than she did before doing so. Otherwise, a problem employee on thin ice with the employer could effectively insulate herself from discipline by engaging in protected activity.”

This case demonstrates the value of extensive and careful documentation. The employer’s separation of FMLA and non-FMLA leave was critical to its ability to demonstrate that the employee was not, in fact, punished for using FMLA leave. Similarly, the thorough documentation of performance issues, which went back to before the dean became aware of the employee’s medical condition.