Some employees seem to think that if they take leave under the Family and Medical Leave Act (FMLA), they are protected from any and all discipline.  Some employers, confused by FMLA’s many requirements and restrictions, appear to agree.  But the reality is that FMLA doesn’t insulate an employee from the consequences of her bad behavior.  For example, let’s take a look at the recent case of Wallner v. JJB Hilliard, WL Lyons, LLC.

An employee with a pattern of tardiness and unscheduled absences, for which she had received a written warning, took FMLA leave for knee surgery in August.  She was also approved for Short Term Disability benefits through September 21, and told to provide additional medical documentation to further extend those benefits.  A Human Resources representative mistakenly thought that the employee’s FMLA leave would end on September 21 and called the employee to tell her that she needed to return to work by that date.  The employee, who was upset, told the HR rep that she couldn’t return until her doctor approved it and yelled at the HR rep, with her husband screaming obscenities in the background.

The employee’s STD coverage was subsequently extended to October 1, and the company sent her a letter telling her to keep the company informed about her return to work date.  Because she was traveling with her husband, the employee didn’t get the letter until October 5 and didn’t contact anyone at the company.  She was released to work on October 6.  When she reported to work the next day, she received a “final written warning” for her failure to communicate about her return to work date and her unprofessional conduct during the call with the HR rep.  The warning stated that she could be terminated for any future policy violations.  The employee was then late to work five out of her next seven workdays, and (to her great surprise) she was terminated.

The employee sued the company for violating her rights under FMLA.  The federal district court, however, found that the company had legitimate, documented reasons for firing her – her excessive tardiness, unscheduled absences, unprofessional conduct, and failure to communicate about her return to work date.  The fact that some of the misconduct (the phone call and the failure to communicate) took place in the context of her FMLA leave does not mean that the misconduct should be excused under the FMLA.  As the court stated, “simply because [the employee] happened to misbehave while on FMLA leave does not entitle her to immunity from termination based on such misbehavior.”

In other words, FMLA does not give the employee the license to misbehave, and employers can hold employees accountable for misconduct that takes place, even if it is connected to an employee’s FMLA leave.