You know that employees cannot be penalized in any way as a result of exercising their rights under the FMLA.  But what if there is a legitimate reason to terminate that is unrelated to the FMLA leave?  A recent case instructs that sometimes, it’s perfectly legal to go ahead and fire an employee on leave.  In Brown v. City of Jacksonville, the Eighth Circuit upheld the termination of an employee on FMLA leave based on her poor performance.  The performance problems were  uncovered during her leave of absence, justifying the timing of the decision.  June Brown was a purchasing agent for the City of Jacksonville.  During her FMLA-protected leave of absence for knee replacement surgery, her supervisors discovered that her paperwork filings were replete with errors and she unnecessarily incurred overtime (when her co-workers were able to complete her tasks in a fraction of the time it took her).  Accordingly, there was no FMLA violation.

Takeaway for employers: It is still a risky proposition to take an adverse employment action when an employee is on a protected leave.  So tread carefully.  Sometimes, though, adverse action is appropriate.  To navigate these tricky waters, make sure to cross your t’s and dot your i’s.  Ask yourself: is there adequate documentation justifying the decision to terminate?  Are you confident it’s indeed unrelated to the protected activity (here, the FMLA leave)?  Are you sure no managers have made discriminatory or biased comments about the protected activity?  And when in doubt, check with counsel.