In many situations, employees with deteriorating attendance patterns eventually go on Family and Medical leave. While some of the absences leading up to the leave may be retroactively attributable to the medical condition that is the basis for the leave, other absences may be unrelated. If the attendance pattern reoccurs once the employee returns from leave, when can the employer take disciplinary action?

A new Eighth Circuit Court of Appeals decision, Lovland v. Employers Mutual Casualty Co., serves as an example for employers as to how such attendance issues should be managed. The plaintiff missed substantial amounts of work for various reasons, and was eventually given a written warning for absenteeism. Soon after receiving this warning, she took FMLA leave for a serious health condition. After returning from leave, she took an unscheduled two-day absence for non-medical reasons. Citing the prior warning, the employer terminated the plaintiff.

She sued, alleging discrimination and interference with her FMLA rights. The Eighth Circuit affirmed summary judgment for the employer. The court rejected the plaintiff's contention that the termination was actually based on the employer's displeasure with her recent FMLA leave. The Eighth Circuit noted that the plaintiff had received a warning for missing over 90 hours of work before she ever sought FMLA leave. These absences, combined with the prior written warning, provided an adequate basis for the termination independent of the protected FMLA leave.

Employers should not wait to counsel employees or to issue warnings regarding attendance until after the employee takes FMLA leave. By delaying the warning until this time, the employer risks a determination that its motives for the disciplinary action involve the protected FMLA leave. The issuance of such warnings prior to the employee notifying the employer of the need for leave makes managing continuing attendance problems after return legally less complex and risky.