FMLA leave is not a magical shield

There's much to admire about the Family Medical Leave Act. Enacted in 1993, FMLA provides job security to employees who need time off due to serious illness or to care for a family member.

A qualified employee can take up to 12 weeks unpaid leave per a 12-month period. The time can be taken as a 12-week bloc or in smaller increments, known as "intermittent leave."

Whether you are a chief executive officer or an entry-level hire, bad stuff happens in life ? accidents, illnesses, calamities. FMLA allows employees at all levels of seniority to obtain a measure of stability and work-life balance when disaster strikes.

So far, so good. Unfortunately, there's widespread misunderstanding among employees about the legal consequences and scope of FMLA, especially when it comes to potential liability. This misunderstanding results in workplace confusion, bad feelings and contentious litigation that could probably be avoided.

The crux of the problem is an erroneous belief that FMLA is a magic shield that protects the on-leave employee from any kind of corrective, disciplinary or adverse action. According to this misperception, employees enjoy a type of job immunity while FMLA leave is in effect. Furthermore, the incorrect presumption is that the shield even extends its protection during an undefined time in proximity to the employee's return to the job.

I often get calls from agitated persons who are resting at home on FMLA when they receive a disciplinary letter for an alleged infraction that occurred prior to taking leave. "I'm out on FMLA. I'm recovering from back surgery. They can't do this, can they?" A common variation is, "They hit me with a letter of warning on my second day back from FMLA leave. My second day! They can't do THAT, can they?"

The answer in both instances is yes, they can.

The general rule is that an employee has no greater rights as a result of being on FMLA leave as compared to being actively employed. You can be disciplined, suspended or even fired for performance issues that pre-dated your FMLA leave.

As an illustration, imagine the case of Joan, an activities director at a senior care facility. Joan requested, and was deemed eligible for, a 12-week FMLA leave. During her absence, her replacement discovered irregularities in a checking account that Joan was responsible for maintaining. In addition, four residents complained about Joan's performance and said that they preferred the programming of the replacement director. The employer sent Joan a notice of termination while she was still out on FMLA leave. Joan sued for wrongful termination.

These facts are similar to Kohls v. Beverly Enterprises Wisconsin, Inc., 259 F. 3d 709 (2001), in which the court sided with the employer. Plaintiff's FMLA leave did not shield her from the termination that would have occurred anyway; the FMLA leave merely provided an opportunity for the employer to discover the extent of her performance problems.

Those of us who represent employees need to do a better job of explaining the purpose and the limitations of FMLA leave to prospective clients. Without question, there are wrongful actions by employers that occur before, during and after the proper exercise of FMLA rights. These violations can be categorized as interference with an employee's attempt to take FMLA leave, and retaliation when the employee seeks to return from leave. The key question in evaluating a case is whether the adverse action had a causal connection to the FMLA leave-taking.

As a caveat, there are situations where an adverse action is a hybrid of pre-FMLA conduct and the conditions of FMLA. An example of a hybrid is an employee's opportunity to complete a performance improvement plan (PIP), which prescribes certain self-improvement steps be taken within a given timeline. An employee who has been put on a PIP cannot be terminated for failure to complete the plan while on FMLA leave.

FMLA is one of our most democratic, humane and practical regulations in the workplace. For all of its merits, however, we also need to stay mindful of its limits.