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FMLA Does Not Insulate Employees From Being Terminated For Poor Performance Or Misconduct

Published by on April 30, 2009

Two recent Seventh Circuit decisions provide employer guidance for personnel decisions involving FMLA leave employees.  In short, both decisions show that an employer can, and should, discipline all employees similarly regardless of their FMLA status.  More after the break. In Cracco v. Vitran Express, No. 07-3827, 7th Cir., 2009, Kevin Cracco worked for Vitran Express […]

Two recent Seventh Circuit decisions provide employer guidance for personnel decisions involving FMLA leave employees.  In short, both decisions show that an employer can, and should, discipline all employees similarly regardless of their FMLA status.  More after the break.

In Cracco v. Vitran Express, No. 07-3827, 7th Cir., 2009, Kevin Cracco worked for Vitran Express for years and received nothing but positive work reviews.  When Cracco went on FMLA leave, however, his temporary replacement discovered what he believed to be serious errors.  Vitran conducted an investigation into the alleged findings and found that Cracco had been falsifying delivery records to cover up late or missing shipments.  Based on the findings of the investigation, the day he was scheduled to return, Vitran terminated Cracco’s employment.  Cracco brought a lawsuit against Vitran based on interference with his FMLA rights.

The company argued that nothing in the FMLA prevents employers from disciplining workers for performance problems discovered while they are out on FMLA leave. Otherwise, it reasoned, it would be required to keep a subpar employee just because he took FMLA leave.  The 7th Circuit Court of Appeals agreed that employees on FMLA leave do not have rights above other employees who do not perform up to par.  The case was therefore dismissed.  Therefore, although an employee is entitled to return to his same or similar position after FMLA leave expires, he is not entitled to greater rights than non-FMLA employees.

In Smith v. The Hope School, No. 08-2176, 2009 U.s. App. LEXIS 6985 (7th Cir. March 30, 2009), an employee who was absent from work under the guise of falsified FMLA documentation was terminated by the employer.  The termination was determined to be proper by the Court. Tanum Smith worked as an instructional aide for Hope School, a residential facility for children with development disabilities.  After developing issues with students that did not allow her to work directly with students, Smith was provided medical certification forms in the event she wanted FMLA leave to cover her absence.  She provided the forms to her doctor.  After securing the FMLA paperwork from her doctor, Smith altered the medical certification in several ways.  She added to the narrative description of her condition “plus previous depression.”  Her doctor had not diagnosed or treated Smith for depression.  Smith also backdated for the FMLA form several days.  She also filled out a separate “Attending Physician’s Statement” in its entirety, listing diagnoses of muscle tension, chronic headaches, and depression.” 

After Smith submitted the forms, the school subsequently confirmed its suspicion that the form had been materially altered.  Therefore, the school denied Smith’s request for FMLA leave and terminated her for incurring unexcused absences – not for altering FMAL documents.  Smith sued alleging that her termination violated the FMLA.  The district court awarded summary judgment to the school.  The Seventh Circuit affirmed.  The court found that by altering the FMLA medical certification, Smith did not provide adequate medical certification to establish that she had a serious health condition, in support of her request for FMLA leave.  “[W]here an employee adds to a medical care provider’s certification form a condition that she has not been diagnosed with, without the knowledge or approval of her physician, an employer can deny her request for FMLA leave.”   As a result, her leave was both unprotected by the FMLA and unexcused.

Contributed by Michael K. Wilson

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