Leave taken under the Family and Medical Leave Act is job protected, meaning that the employee is legally entitled to be restored to his or her position after returning from the absence.  Under what circumstances may an employer use cause as the reason to terminate an employee who is out on FMLA leave?  Last month, the Seventh Circuit Court of Appeals allowed a termination in the face of misconduct discovered while the employee was on leave.

In Daugherty v. Wabash Ctr Inc., the plaintiff took FMLA leave for stress immediately after receiving a written reprimand and after his scheduled vacation was cancelled by his employer.  While on leave, the employer uncovered unauthorized personal charges on a company credit card.  The employer’s IT department also discovered attempts to access the company computer network that were traced to the plaintiff’s home.

The employer met with the plaintiff the day he returned from leave and asked him to sign a corrective action plan.  He refused, left the office, and returned with a doctor’s note seeking extension of his FMLA leave.  He then refused to sign the plan or to provide computer passwords or keys, claiming that because he was on FMLA leave, he could not be required to work.

Several weeks later, a computer forensics expert discovered that the plaintiff had deleted more than 5000 e-mails from his computer the day he was initially disciplined.  The company fired him while still on leave for gross misconduct.  He sued, claiming interference with his FMLA rights.

The Seventh Circuit affirmed summary judgment for the employer, stating that employees on FMLA leave are not immune from disciplinary action unrelated to the leave.  The employer does not have to wait until the employee is reinstated before taking such disciplinary action.  The court also rejected the plaintiff’s claim that he was forced to work while on leave.  Employers are entitled to contact employees on FMLA leave to make modest requests that allow the business to continue to operate in the employee’s absence.

Employers should not read this decision to conclude that employees on FMLA leave can be routinely terminated for disciplinary reasons.  Absent “smoking gun” evidence as in this case, employees on leave who are terminated often claim that the timing of the decision and/or weak reasons create a material issue of fact as to the employer’s true motivations.  In many cases, it is best to reinstate the employee, and to deal with performance or disciplinary reasons after return from FMLA leave.