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Terminating employee on FMLA leave for performance

November 30, 2015

By Anthony Kaylin, courtesy of SBAM Approved Partner ASE

One of the difficult issues to deal with in FMLA is whether you can terminate an employee who is on FMLA leave. Under certain circumstances, you can. For example, if the employee is in a department where a layoff is to occur and the employee is in the group of employees slated to be laid off, the employee can be laid off. On the other hand, an employer should never terminate an employee simply because the employee took FMLA leave, which would be interfering with the employee’s right to FMLA.  Personal liability could attach.

The hardest question is whether an employee can be terminated for performance while on FMLA leave.  In the case of Gabriel v. Colorado Mountain Medical, P.C., No. 15-1004 (10th Circuit Court of Appeals, 10/13/15), the court ruled in favor of the defendant employer, who terminated the plaintiff employee.

Cheryl Gabriel worked for Colorado Mountain Medical (CMM) starting in 2007. In 2010 Gabriel took a second job, part-time, with a local ambulance company, which sometimes required her to work a 24-hour shift immediately before reporting to work at CMM.   Up to that point, Gabriel had no documented performance issues.

In 2012 Gabriel started suffering anxiety attacks. Between October 31 and December 17, 2012, she had anxiety attacks at work that required her to take unplanned breaks several times per week. Her coworkers covered for her, but became concerned for their patients’ safety. As a result of the anxiety attacks, Ms. Gabriel took two weeks of FMLA leave in late December 2012.

She returned to work part time from December 29, 2012, until January 8, 2013, when she went back to full time. However, she also continued to work for the ambulance company, and again worked some 24-hour shifts immediately before reporting to her CMM job. The anxiety attacks returned; on one occasion she phoned her CMM supervisor while acting suicidal. She also let fellow employees know that she had acquired a gun.

On February 7, 2013, Ms. Gabriel met with Dr. Bock and other CMM personnel. They presented her with a memo that documented her unsatisfactory work performance, her refusal to give up working 24-hour ambulance shifts before reporting to work at CMM, her negative attitude, and her fellow employees’ concern that she had acquired a gun. They directed her to take more FMLA leave and informed her that she might not be reinstated, noting that the decision whether to reinstate “will be entirely in the hands of CMM management personnel.”

In March, Gabriel again met with Dr. Bock and CMM personnel. She informed them that she intended to continue working at the ambulance job, including 24-hour shifts. After that meeting, CMM terminated her for the reasons stated in the February 7 memo.

Gabriel sued CMM and Bock for FMLA interference because CMM refused to reinstate her to her prior position after her FMLA leave. The trial court granted summary judgement to CMM and Bock, and on appeal the 10th Circuit Court of Appeals affirmed the summary judgement.

Although the right to reinstatement at the end of an FMLA leave is spelled out in the law, it is not an absolute right. Gabriel had to show that CMM’s adverse action (termination) was related to her attempt to exercise her FMLA rights, or she would lose her case.

Gabriel argued that because CMM knew about her job-performance problems before she went on FMLA leave, CMM could not claim her discharge was not related to her FMLA leave.  The issue the court reviewed was whether Gabriel was terminated because of the problems, or the performance issues that resulted from the problems.  The court stated that even if Gabriel had recovered from her mental-health problems, the FMLA did not prohibit CMM from terminating her for the work deficiencies that resulted from those problems.

The court noted that Gabriel was apprised of her performance issues and she knew that CMM did not want her to work the 24 hour shifts before her shifts at CMM. The court dismissed Gabriel’s argument that an employer violates the FMLA if it does not reinstate the employee, no matter what the reason, if the employee is cleared to return to work. 

Since CMM presented Gabriel’s performance issues to her while she was back to work, it was in a position to take action.  As the court points out, an employee who requests FMLA leave has no greater protection against termination for reasons unrelated to her FMLA request than she did before submitting the request. In other words, as long as CMM gave notice of her performance issues before the FMLA, and the issues were not related to her taking the FMLA, it had the right to terminate her without violating her FMLA rights.

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