Case: Employee terminated for not performing job after FMLA leave

Many employers shy away from terminating an employee soon after FMLA leave, particularly if the time between the leave and the termination is short. But there are situations in which employees don't have FMLA rights, even in regard to returning to work. Such was the case for Jeff.

As lead custodian, Jeff was on his feet all day. In December 2018, he took six weeks of FMLA leave to get stents placed in his legs (apparently, he was having some pain in his feet). He returned to work in February 2019 with no restrictions or limitations.

On September 16, 2019, Jeff began another FMLA leave because his doctor wanted him to rest his feet to avoid having surgery on his bunions. He was asked for certification and even provided an extension, but he delayed in submitting it.

Finally, on October 14, the employer got a certification indicating that Jeff could return to work without restrictions on November 13. Jeff's FMLA leave, however, expired on October 25 and since he could not return to work for many unprotected days, the employer characterized Jeff's continued leave after October 25 as job abandonment.

Unhappy with this, Jeff sued, arguing both FMLA interference when it refused to let him return to work, FMLA retaliation when it terminated him for requesting and taking leave, and ADA violations.

For the interference claim, the court held that Jeff was not cleared to work until well after his FMLA leave expired, so he was not entitled to reinstatement. The evidence indicated that Jeff's assertion that he could work without restrictions ran into his own argument that he requested and should have received an accommodation under the ADA. The FMLA does not require reasonable accommodations.

As for the FMLA retaliation claim, the employer argued that Jeff exhausted his FMLA leave and could not return to work for weeks. The court pointed out that Jeff was given the FMLA leave to which he was entitled. The employer was even nice when it gave Jeff extensions to get his FMLA certification submitted.

The employer cited that the reasons for the termination was because Jeff could not perform his job, and his leave was not protected. The court agreed with the employer.

Jeff didn't win his ADA argument, either, as the court indicated that Jeff didn't have a known disability.

Andrews v. Cobb County School District, Northern District of Georgia, No. 1:20-cv-4043, July 1, 2022.

Key to remember: Employers may take employment actions, including termination, if the reason for the action is not because an employee took FMLA leave, but for a legitimate, other reason.