- An employee who faced a workplace investigation (and was fired as a result) only after requesting Family and Medical Leave Act (FMLA) leave can continue with his interference claim, a federal district court has ruled (Diamond v. American Family Mutual Insurance Co., No. 4:16-00977 (W.D. Mo. (Nov. 9, 2017)).
- The American Family Mutual Insurance Co. claims adjuster had just received a positive performance review when he informed his supervisor that he would need FMLA leave. His supervisor then said he had received customer complaints about the employee and began an investigation into his work and fired him.
- While the employer maintained that it had a legitimate reason for firing the plaintiff, he alleged that the timing of the investigation was enough to keep his claim alive. The court agreed, denying the employer's request for summary judgment.
The FMLA doesn't protect workers from disciplinary action for behavior unrelated to leave, even if that behavior is discovered because of the leave. This can happen when a manager takes over an absent employee's work and discovers a problem, for example. But fishing for a problem can serve as evidence of an employer's attempt to interfere with a worker's FMLA rights.
And, while managers sometimes struggle with giving honest feedback, accurate performance reviews can go a long way in defending claims filed under the FMLA, the Americans with Disabilities Act (ADA) and other laws. It's important that when an employer takes an adverse action against an employee, it can point to a long, documented history of declining performance.
Finally, employers should remember that while the ADA doesn't require employers to rescind discipline if an employee later discloses a disability, managers can ask workers whose performance is declining whether there's anything they need to do their jobs. And, if the employer already knows or should know that an employee's impairment is interfering with his or her ability to work, it has an affirmative obligation to offer a reasonable accommodation.