Yes, you may terminate employees who request and take FMLA leave

Mark had an incident with an ex-girlfriend involving a gun and cocaine. He was also arrested for driving under the influence. It was a stressful time.

Mark then suffered a stroke toward the end of the year, for which he took leave under the Family and Medical Leave Act (FMLA). He returned to work in January, but he was agitated and struggled with other health issues, such as depression and anxiety.

Workplace issues emerge

At first, things were fine upon his return. But the dream was short lived, as behavioral issues soon emerged. One of Mark’s subordinates reported feeling unsafe around him, as he began to be combative and confrontational. Other complaints ensued to the point that Mark was warned that if he didn’t change his behavior he could be disciplined up to and including termination.

The final straw

Fast forward to June 4, when Mark had a confrontation with his assistant. This was the final straw for Johnnie, Mark’s boss, who had seen enough of Mark’s bad behavior. It was at that point that Johnnie decided to terminate Mark.

That evening, however, Mark had a nervous breakdown and was hospitalized. The next day he requested FMLA leave, which was granted. On June 22, Johnnie and HR contacted Mark and told him he was being terminated because of his behavior, effective at the end of his FMLA leave.

Termination timing

Mark sued, arguing that his FMLA rights were violated. The employer argued that the reason for the termination was Mark’s poor behavior — a legitimate reason for the termination. Mark’s FMLA leave was unrelated.

Mark tried to argue that the reason the company gave was pretextual, but the court disagreed. While Mark was terminated after he began FMLA leave, the decision to terminate was made before the company learned of the leave need.

The FMLA leave was not the trigger for the termination. The June 4 confrontation was the proverbial point of no return.

The timing of a termination decision can pose risks, but in this case, it wasn’t enough. Mark could not overcome the numerous complaints about his behavior, which was the real reason for his being fired. The fact that the termination decision was made before Mark took leave also helped the employer in the case.

Key to remember: The timing of a termination decision can pose risks for an FMLA claim, but not always. Employers must show that the termination reason and FMLA leave are unrelated.

Snyder v. U.S. Bank National Association, Sixth Circuit Court of Appeals, No. 22-3385, November 29, 2022.