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Viewpoint: Court upholds termination for issues found during FMLA leave

An employee filed a lawsuit against her employer after her employer terminated her for performance issues discovered while she was out of the office on leave under the Family and Medical Leave Act (FMLA). The federal 7th Circuit Court of Appeals (which has jurisdiction over Illinois, Wisconsin, and Indiana) was tasked with determining whether the termination was a violation of the FMLA.


During the first year of her employment, the employee showed performance deficiencies in her work. The employee did not receive formal discipline or counseling for her deficiencies. Instead, her supervisor provided her with ongoing training.

Later that year, after using her available sick time for extended leave, the employee returned to work, but her performance continued to suffer. Upon her return, her supervisor questioned her about additional performance issues discovered while she was out. Her supervisor then created a spreadsheet to keep track of her performance issues after discovering another mistake.

About a month later, after continuing to go through health issues, the employee had to take leave under the FMLA. Before her leave, her supervisor made comments about the employee being “sick a lot” and needing “a full team there to run her department.” Shortly after the employee began her leave, the employer’s audit system discovered several more errors in the employee’s work. Then, a little later, a government agency that the employer worked with notified the employer of two additional errors that the employee made in the prior year.

Following the discovery of these errors, the employee’s supervisor recommended that the employee be terminated because of her poor performance. While the employee was on FMLA leave, the employer initiated an investigation into the employee’s performance.

Prior to the end of the investigation, the employee returned from her FMLA leave. Three days after the employee’s return to the office, the employer completed its investigation and terminated the employee the following day.

After her termination, the employee filed a lawsuit alleging violations of the Americans with Disabilities Act (ADA) and interference and retaliation arising under the FMLA. The federal district court ruled in favor of the employer on all claims. The employee appealed the ruling to the federal 7th Circuit Court of Appeals but dropped her ADA claim.

Appellate Court’s decision

An employee is protected from termination for taking leave under the FMLA.  An employee is also entitled to return to their same or an equivalent job at the end of their FMLA leave. The 7th Circuit noted, however, that “an employee is not entitled to return to her former position if she would have been fired regardless of whether she took the leave.”

In ruling for the employer, the 7th Circuit made multiple findings. First, the 7th Circuit noted that the employee never disputed the employer’s issues with her work performance and that her supervisor began tracking her performance deficiencies months before she began her FMLA leave.  Second, the 7th Circuit considered the employer’s employment policies, which specifically stated that the employer could terminate the employment of an employee “without engaging in corrective counseling whenever the seriousness of the situation require[d].” Third, the 7th Circuit held that her supervisor’s comments were not sufficient to cause an issue because the supervisor was not the final decision-maker regarding the termination of the employee. Lastly, the 7th Circuit found that “[w]aiting to confirm the results of the investigation supports a finding that [the employer] terminated [the employee] based on performance,” not in retaliation for taking leave.


As the 7th Circuit points out, just because an employee is out on FMLA leave or has recently returned from FMLA leave, it does not mean an employer cannot terminate that employee for legitimate performance issues. Furthermore, this case demonstrates the importance of having effective and clear policies. It also demonstrates the importance of following those policies and maintaining full and complete documentation of employee performance deficiencies, policy violations, and investigations. Employers should still be mindful to treat employees consistently with how other employees with similar performance or conduct issues have been treated.

R. Eddie Wayland is a partner with the law firm of King & Ballow.  You may reach Mr. Wayland at (615) 726-5430 or at [email protected]  The foregoing materials, discussion and comments have been abridged from laws, court decisions, and administrative rulings and should not be construed as legal advice on specific situations or subjects.