Employees May Be Terminated for Performance Issues Discovered During FMLA Leave


An employee is protected from termination for taking leave under the Family and Medical Leave Act, but not for performance issues that warrant termination, even if they are discovered while the employee is on FMLA leave, as the U.S. Court of Appeals for the Seventh Circuit recently reiterated.

In Anderson v. National Lending Corp., an employee with a history of performance deficiencies went on FMLA leave. While she was on leave, the company’s audit system flagged a number of errors in her work that caused a government agency to cite the employer. Her supervisor recommended her termination, and Human Resources conducted an investigation into the employee’s performance. She returned to work while the investigation was still ongoing. Upon its completion three days later, the decision was made to terminate her employment. She sued, claiming violation of her FMLA rights to reinstatement and retaliation for taking FMLA leave.

The Seventh Circuit noted, however, that “an employee is not entitled to return to her former position if she would have been fired regardless of whether she took the leave.” In this case, the Seventh Circuit found that the employer had evidence of her poor performance, which warranted discharge in the company’s honest opinion, and the company’s Standards of Conduct permitted termination for substandard performance without prior disciplinary action.

While this case supports the ability of employers to take appropriate disciplinary action, regardless of an employee’s FMLA leave, we caution employers to ensure that they are treating such employees consistently with how other employees with similar performance or conduct issues have been treated.