Can you fire an employee after FMLA leave for the same problem underlying the leave?

An employee suffering from depression was granted FMLA leave to deal with her condition. When she returned to work following leave, her performance was poor, allegedly as a result of her continuing depression. The situation did not improve and the employee was discharged. She then sued your organization claiming the termination interfered with her FMLA rights. Was she correct?

No, not according to the courts that heard the case from which this example was taken, McBride v. Citgo Petroleum Corp (10thCir 2002) 146 LC ¶34,524. The FMLA rules ensure that employees who qualify for leave get time off, certain benefits and reinstatement following leave (when leave is taken in more than short increments of time). But it does not provide a justification for poor work performance on the job. Employers can expect that while employees are at work they will meet performance expectations. If they cannot and need other on-the-job accommodation to deal with a medical, mental or other problem for which FMLA leave is provided, that accommodation must be sought in a law other than the FMLA.

Make sure your staff understands the limitations of the FMLA-what it encompasses and what it does not encompass-so that you are not providing leave for nonqualifying reasons or covering performance issues under a leave umbrella. Both can be costly errors.