In September, the Matrix compliance team presented a DMEC webinar, True FMLA Stories from Recent Court Decisions, which can be viewed here. We received great questions from attendees during that webinar and answered some of them in a blog post last month. Now we take on more questions raised by attendees to discuss discipline and performance management of employees that request or are already out on FMLA leave.

Q: Can an employer terminate an employee previously under investigation immediately following a request for FMLA leave?

A: Yes, provided the investigation of the employee and termination decision are unrelated to the employee’s FMLA request and are for legitimate business reasons. If an employee is under investigation for misconduct or placed on a performance plan for a reason unrelated to the FMLA leave request, the employer is not prohibited by the FMLA from taking disciplinary action immediately, including termination, if supported by the employee’s conduct and the employer’s policies. While this is especially true if the investigation or performance action was underway before the employee’s FMLA request, your hands are not tied by the FMLA from acting appropriately on employee issues discovered at any time after the employee’s request or during the FMLA leave. Of course, make sure you keep all documentation supporting the investigation and resulting discipline/ termination.

Our webinar discussion of Blank v. Nationwide Corporation, (6^th Cir. 2021), is illustrative. In that case, the court found that a call to an employee out on FMLA leave notifying him of a demotion due to racist comments he made before he went out on leave and a later phone call to that employee in response to his complaint about the demotion were de minimus contacts that did not interfere with his FMLA rights. Also, in Krupa v. Support for You, LLC, (N.D. Ohio 2021), a federal district court found that an employer’s termination of an employee for payroll fund mismanagement while the employee was on FMLA leave did not violate the FMLA. The court found no causal connection between the employee’s FMLA leave and the reason for her termination.

Q. Is it appropriate to call the employee while on leave to discuss a PIP?

A. Yes, provided the discussion is short, concise and to the point.

The mere delivery of and a short discussion about a Performance Improvement Plan (PIP) is generally permissible. Again, de minimus phone calls with employees out on FMLA leave are acceptable. There is no right under the FMLA to be “left alone” and employees out on FMLA are not completely absolved of responding to an employer’s inquiries. Also, you should consider what is fair to the employee. It is probably better to let the employee know there is a serious issue that needs tending to rather than springing it on the employee when he returns to work.

On the other hand, in person meetings or prolonged telephone calls discussing the PIP such as an employee’s specific tasks and projects, the nature and quality of the employee’s work, the employee’s additional work obligations and how he or she can meet them going forward, look more like work than de minimus phone calls. To minimize the risk of an interference claim, a better practice is to call the employee, let the employee know that you will be sending a PIP for review, and tell the employee that you will have follow-up discussions upon her return from leave. Then, don’t forget to schedule the PIP discussion immediately after the employee’s return to work!

Pings for Employers

Document and communicate performance and conduct problems as soon as you become aware. Do not wait! Apply this process consistently and uniformly with all employees.
Keep phone calls with the employee out on FMLA concise and discrete and relay the crucial information the employee must know.
When conducting a workplace investigation or making decisions about disciplinary actions, make sure the decision is fully documented showing the dates of the relevant events and dates in which the decision to discipline or terminate was made and before the message is delivered to the employee. This is not only a good HR practice but will protect you down the road in the event the employee requests or goes out on leave.
Employers sometimes fear that taking disciplinary action in close proximity to an employee’s FMLA request or leave will look like interference or retaliation, but you are not expected to ignore misconduct or bad performance. Whether you take action following the employee’s request, during the leave, or immediately upon the employee’s return to work, that action will be in close proximity to the employee’s exercise of FMLA rights. So, why wait and let the situation go untended?
Of course, each situation is fact specific and before making a final decision whether to hold that conversation or take disciplinary action, you should seek legal advice.

Matrix Can Help!

Matrix offers integrated FMLA/leave of absence, ADA, and integrated disability management services. For more information about our solutions, please contact your Matrix or Reliance Standard account manager, or reach us at ping@matrixcos.com.