FMLA Articles

Delaying termination can risk an FMLA claim


Key to remember:  ​If an employee commits a terminable offence, delaying the termination could present risks.

Applies to: Private employers with 50 or more employees, and all public employers.

Impact to customers: While the FMLA does not provide details to cover every situation, cases such as this help do so. In this case, employers can learn to act promptly but wisely to avoid FMLA issues.


In June, Henry received his firs poor performance review of his 20-year career with the company. In October, he received a final warning related to a part that broke during a testing procedure (he was an engineer). Henry protested the final warning to the point of being escorted off work premises and was instructed by his boss to apply for an employee assistance program based on his medical conditions (epilepsy and glaucoma). Henry was granted and took FMLA leave for those conditions.

The case opinion did not elaborate on whether Henry’s issues were related to his conditions.

In December, while still on FMLA leave, Henry was fired because of his June performance review and the October incident. He sued, citing violations of the FMLA. Generally, that he was terminated during FMLA leave and denied reinstatement at the end of the leave.

In court, the employer argued that Henry was terminated because of the poor performance review, the protest of a final warning, and the ejection from work premises.

The court found that Henry sufficiently showed a link between his termination and his request for FMLA leave. Since he was fired while on FMLA leave, there was enough temporal proximity between the two. The fact that the employer provided non-FMLA reasons for his termination did not stop Henry’s claim, because Henry didn’t need to show that his FMLA leave was the only reason for his termination.

Of note was the fact that the employer did not fire Henry at the time of his pre-leave workplace performance issues in June and October, but rather waited until December to do so — approximately two months into his FMLA leave. This timeline of events indicated that the employer’s termination decision was not completely unrelated to Henry’s exercise of his FMLA rights.

Had the employer terminated Henry in June or October, this case would likely have been averted. But by waiting until Henry was on FMLA leave, the employer’s actions appeared to indicate that the FMLA leave was somewhat involved in the termination decision.

If an employee commits a terminable offense, employers may not want to delay in acting, or at least not wait until the employee has job-protections under the FMLA. As this case illustrates, timing can make all the difference between having to spend resources defending an action or not.

Hester v. Bell-Textron, Fifth Circuit Court of Appeals, No. 20-11140, August 23, 2021.

This article was written by Darlene M. Clabault, SHRM-CP, PHR, CLMS, of J. J. Keller & Associates, Inc. The content of these news items, in whole or in part, MAY NOT be copied into any other uses without consulting the originator of the content.


The J. J. Keller LEAVE MANAGER service is your business resource for tracking employee leave and ensuring compliance with the latest Federal and State FMLA and leave requirements.