Employees who takehave no special protection from discipline for that’s not related to the fact that they took leave. That means you may refuse to reinstate an employee who took leave, as long as you would have done so anyway.
Recent case: Cheryl was a clinical assistant at a medical practice. All went well until, on top of her full-time work at the practice, she took a part-time job with an ambulance company.
The moonlighting position sometimes required her to work a 24-hour ambulance shift before coming directly to her full-time job. Perhaps unsurprisingly, her schedule caused stress, and she began to suffer from panic attacks.
Cheryl took unplanned leave with increasing frequency and then went out on FMLA leave for two weeks. Even after she returned to work, the attacks continued.
Her supervisor noted her declining mental state, writing in a memo, “Her demeanor and appearance are frequently unprofessional, she often- times appears to be tired, is forgetful, at times can be easily distracted and frequently requires other clinical staff to complete her duties. It is the company’s understanding that [she] has a second job with an ambulance company and … on occasion has reported that prior to coming to work … she has just worked a 24 hour shift….”
Cheryl went out on more FMLA leave after being informed her job might not be there when she returned, given her deteriorating performance.
When Cheryl didn’t modify her moonlighting schedule, she was terminated.
She sued, alleging interference with her right to return from FMLA leave.
The court tossed out her lawsuit, concluding that workers aren’t entitled to special protection from the consequences of poor performance just because they take FMLA leave. (Gabriel v. Colorado Mountain Medical, No. 15-1004, 10th Cir., 2015)