The Family and Medical Leave Act does not prohibit employers from terminating employees for reasons unrelated to their need for medical leave. However, the timing of such termination decision can have a substantial impact on subsequent litigation over the actual motivation for the decision. Last month in an unpublished opinion, the Sixth Circuit Court of Appeals concluded that the plaintiff’s termination nine days after returning from FMLA leave created a temporal inference that defeated the employer’s attempt to have the claim dismissed prior to a jury trial.

Wallner v. Hilliard Lyons, LLC involved an employee who took FMLA leave for a knee replacement. Shortly before taking leave, she received a warning regarding tardiness and absenteeism for the first time in her long career with the company. Upon return from leave, her supervisor began recording her arrivals at work, and terminated her nine days after return for five instances of tardiness ranging from two to eight minutes.

On appeal, the Sixth Circuit vacated a grant of summary judgment for the employer. The court stated that the lack of time between the plaintiff’s return from FMLA leave and her termination created a strong presumption that the two were related. The Sixth Circuit reached this decision despite the fact that the plaintiff had no direct evidence of discrimination. Although the court did not determine that the employer had interfered with the plaintiff’s FMLA leave, it left the determination to the jury following trial.

The employer’s termination documentation did not help its case. Although not cited as the reason for the termination, the memo noted the impact of the plaintiff’s FMLA leave on her co-workers, and complained about several extensions of this leave which were within the 12-week statutory entitlement.

Absent clear and undisputable evidence of reasons meriting termination, employers should exercise caution when taking adverse action against employees immediately upon their return from FMLA leave. In most circumstances, employees experiencing performance problems before taking leave can be given a reasonable amount of time upon return before a final decision is made regarding employment status. In addition to giving the employee a chance to correct his or her performance, this delay helps remove any legal inference that the leave and subsequent termination decision are temporally connected.