Important court decision announced regarding FMLA

By Rudman Winchell Attorney

A federal court in Pennsylvania has affirmed the dismissal of an FMLA claim in a case where an employee on FMLA leave was terminated upon her return based on misconduct that occurred before the leave started.

As you know, this is always a delicate situation. In this case, the employee worked as a hospice nurse. During her employment, she showed to a patient and his wife pictures on her personal cell phone of her boyfriend’s genitals. The patient reported the conduct and asked that this employee not come back. The wife also confirmed that this had happened. At the time the incident was reported, though, the employee had just begun an approved FMLA leave. The employer decided to wait until she returned from that leave to confront her about the allegation, investigate, and decide whether to take job action against her. When she returned, management met with her and decided to terminate her employment based on the meeting and the patient’s allegation. The employee sued, alleging the termination was actually because she took FMLA leave.

The employee alleged that the employer’s failure to address this with her immediately and instead to wait until her leave ended showed a discriminatory motive. Fortunately, the court disagreed and affirmed the summary judgment in the employer’s favor. In doing so, it stated that if the employer had intended to retaliate it had no reason to wait until the leave ended and it noted that she was recuperating from major surgery during her leave, insinuating that it was appropriate not to confront her with this during the leave.

Although the outcome was correct in this case, it is a good reminder that employers must carefully think through how to handle disciplinary issues that arise while an employee is on an approved FMLA leave of absence.
While there are certainly situations where it might be appropriate to deal with the issue during the leave, it can also be reasonable to wait in certain circumstances.

If you have questions about this opinion or the FMLA, please feel free to contact me at


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