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Discipline and the FMLA

By on January 28, 2016 in Discipline with 2 Comments

“Can I discipline an employee who takes 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

About the Author:

Carmen Saginario Jr., Esq. is Co-Chair of Capehart Scatchard’s Labor & Employment Group. Mr. Saginario focuses his practice on employment litigation and counseling. He regularly counsels clients on litigation avoidance, personnel policies and procedures including those associated with the Americans with Disabilities Act, Family and Medical Leave Act and Fair Labor Standards Act, employment discipline, layoffs and other terminations. Mr. Saginario directs and participates in internal investigations involving claims of harassment, policy violations, ethics and other employment issues. He also appears on behalf of private and public sector clients before the judiciary as well as State and Federal administrative agencies (EEOC, N.J. Division on Civil Rights, etc.). Mr. Saginario is also experienced in representing clients before arbitrators and mediators. He has negotiated numerous public collective negotiations agreements (e.g., law enforcement, public works, etc.). Mr. Saginario has been certified by the National Football League Players Association (NFLPA) as a Contract Advisor (player agent).

Mr. Saginario also regularly represents clients in administrative and complex civil litigation matters and also 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.

Mr. Saginario serves as counsel for governmental and other entities (including counties, municipalities, school boards, and fire districts) and individuals with respect to laws governing public entities, as well as educational, procurement, environmental, transportation, and public safety issues.

Mr. Saginario served as a Deputy Attorney General for the State of New Jersey and Assistant Counsel to Governor Thomas H. Kean, has served as Vice Chair and Director of Administration for the Cinnaminson Sewerage Authority, and Vice Chair and Treasurer of the New Jersey Health Care Facilities Financing Authority.


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  1. I enjoy reading a post that will make people think. Also, many thanks for allowing me to comment!

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