Discipline and the FMLA

  By now, most employers with 50 or more employees are well aware that the Federal Family Medical Leave Act requires them to provide up to 12 weeks of unpaid, job-protected leave to eligible employees who have a serious health condition that renders the employee unable to perform his/her job. But what if the employee has a “bad” disciplinary record and then goes out on FMLA leave? Can you terminate the employee for breaking workplace rules before he went out on FMLA leave?  And, if you choose to do so, what’s your legal exposure?    
  These issues were recently considered by the Third Circuit Court of Appeals in Richard Beese v. Meridian Health Systems, 2015 U.S. App. Lexis 10108 (11/2/15), where a former employee claimed he was wrongfully retaliated against (under the FMLA and New Jersey’s Law Against Discrimination) because he took protected leave under the FMLA.  In Beese, the employee was subject to the employer’s discipline policy which identified numerous workplace violations and which also described the progressive nature of employee discipline (e.g., warned that after a certain number of infractions in a given time period, termination was possible).
  After having received a “Final Warning” under the employer’s discipline policy, the employee engaged in yet another violation of workplace rules and, before the employer could make a final determination as to whether the violation actually occurred, the employee went out on an FMLA-protected leave of absence. The employer concluded he did in fact engage in a violation and, when he returned from FMLA leave, he was issued his last and final disciplinary notice (for conduct that occurred before he went out on FMLA) and was terminated.
  The employee claimed that both the Final Warning and the termination were in retaliation for his taking protected leave. As to the Final Warning, the Court rejected the employee’s claim of retaliation, finding that even though the pattern of excessive absenteeism that lead to the Final Warning were protected under the FMLA and NJLAD, that the employee would have been disciplined for his failure to follow established call-out procedures which had nothing to do with his FMLA protected absences.
  The employee also claimed that he was fired not because he “broke the rules” after the Final Warning, but rather, because he went out on FMLA leave. The employee’s problem, however, was that he failed to show any connection between his taking the protected FMLA leave and the decision to terminate his employment or any motive that the employer may have had to retaliate against him because he took FMLA leave. As a result, the Court rejected that claim as well and affirmed the dismissal of the employee’s claims.
  The lesson here: If you have a set of neutral workplace rules that do not violate FMLA or other protections, and you enforce those rules in a way that does not violate the FMLA or other rules and regulations, you can discipline employees even if they exercise their rights to take protected leave. The “take-away”: Be extremely careful in how you approach discipline of employees who are on FMLA leave or have taken it in the past. To be safe, give serious consideration to consulting your labor and employment attorneys about these serious issues.
About the Author:
  Carmen Saginario Jr., Esq. is Chair of Capehart Scatchard’s Labor & Employment Group and a Shareholder in the firm’s School Law Group. Mr. Saginario focuses his practice in representing public and private sector entities on labor and employment matters, as well as governmental, regulatory and administrative, and complex litigation matters. Mr. Saginario also represents governmental and other entities and individuals with respect to laws governing public entities, as well as educational, procurement, environmental, transportation, and public safety issues. Mr. Saginario also regularly represents public and private sector clients in administrative and complex civil litigation matters. Additionally, Mr. Saginario supervises Capehart Scatchard’s Corporate Compliance Group which counsels and assists public and private sector entities on establishing and implementing legal and ethics compliance programs. He has also been certified by the National Football League Players Association (NFLPA) as a Contract Advisor (player agent). Mr. Saginario’s other significant experience is he served as a Deputy Attorney General for the State of New Jersey and Assistant Counsel to Governor Thomas H. Kean. He is admitted to practice law in New Jersey, the United States District Court for the District of New Jersey and the Third Circuit Court of Appeals.
  Mr. Saginario is also a contributor to Capehart Scatchard’s HResources blog which features articles from colleagues in the firm’s labor and employment group. The blog provides useful tips to employers and human resources professionals as to how to keep the workplace, and workplace policies, in compliance with state and federal employment laws. To subscribe to the blog, please visit www.hresourcelegal.com or contact Mr. Saginario directly at 856.914.2081 or via email at csaginario@capehart.com.