Discipline isn’t necessarily retaliation, even for protected employees.

As a good employer, you follow the requirements of the Family and Medical Leave Act (FMLA) and the Americans with Disabilities Act (ADA). Even when this means an employee is gone for extended periods of time, you understand the importance of these laws, and why they’re in place.

But it can still be a delicate balancing act to follow these laws while also protecting your business and other employees. Recently, there have been two court rulings that help to shed light on how and when employers can take disciplinary steps for employees who are missing work or underperforming, even if those employees are protected under the FMLA and ADA.

The first involves a former employee of J.P. Morgan Chase Bank who took intermittent FMLA leave from her job as a notary and bank teller. Although the employee was accommodated as required by law, her job performance was still not up to the standards of her employer. That included the employee’s decision to cease performing notary services—not because she was unable, but because she did not feel comfortable with them.

Ultimately, the employee was fired. When she filed suit in federal court bringing claims under the FMLA and the ADA, the court found that her termination was not due to her use of FMLA leave, but rather her poor workplace performance. Her termination, therefore, was entirely within the law.

A similarly clarifying case is that of Severson v. Heartland Woodcraft, Inc., which was decided in September 2017. The court found that, while employers may be required under the ADA to provide a few days or even weeks of leave beyond the 12 allotted through FMLA, that does not open the door to an extended or undefined leave.

As the court put it, “an extended leave does not give a disabled individual the means to work; it excuses his not working.” And since the purpose of the ADA was to help disabled individuals gain access to employment, it is not reasonable to assume that an extended leave is protected by the law. Therefore, an employee who seeks such a leave is subject to the same policies and potential disciplinary action as any other.

In the eyes of the law, disciplinary action is a consequence, not retaliation. The law supports employers who use disciplinary action where appropriate. While you may have concerns about the appropriate way to discipline protected employees, it’s important to remember that there are legal limits to what the FMLA and ADA allow.

If you have questions about these laws, or about how to appropriately discipline your protected employees, please don’t hesitate to contact Axiom Human Resource Services today.

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