“Employees cannot immunize themselves from legitimate termination by taking FMLA leave.”

The U.S. Court of Appeals for the Fifth Circuit provides support to an employer’s ability to take legitimate employment action for an employee’s misconduct, regardless of the employee’s use of leave under the Family and Medical Leave Act.

In Amedee v. Shell Chemical, LP, the employee was formally disciplined for attendance violations and warned that additional violations could result in termination. She then missed her scheduled shift the next day after driving drunk in the middle of the night, wrecking her truck and getting arrested. She then applied for and was granted FMLA leave for anxiety. While she was on leave, the company conducted an investigation and then terminated her. She sued for violation of her FMLA rights, among other things.

The Fifth Circuit found that, “[A]s should go without saying, an employee’s failure to show up for work is a legitimate reason for firing her,” particularly given the warning she had just received the day before. The employer showed that it would have lawfully terminated the employee had she not taken leave, and thus she was not entitled to be reinstated to her position. The use of FMLA leave does not protect employees from their misconduct.