By: Brian Boyd

Family and Medical Leave Act (FMLA) leave is often thought of as an impenetrable fortress wherein an employee remains untouchable throughout the duration of their leave.   In fact, many employers are confused about the true scope of FMLA leave and would be surprised to learn that in certain circumstances an employee may be legally terminated from employment despite the fact they are on FMLA leave.  It is understandable why an employer would be fearful of terminating an employee while they are on FMLA leave, especially when faced with the optics of terminating an employee while on protected leave.  Federal regulations nevertheless permit negative employment actions during such a leave so long as the reason given is unrelated to the FMLA leave.  Mullendore v. City of Belding, 2017 WL 3614451 (6th Cir. 2017), involved such a situation. 

Margaret Mullendore served as the City Manager for the City of Belding, Michigan.  On January 6, 2015, Mullendore presented each member of the Belding City Council with a “Personal Medical Issue” memorandum indicating that she would be having surgery on January 15, 2015 and would remain off work until January 27, 2015.  Mullendore would work from home during this period to the extent feasible given her recovery.  Citing political strife, On January 20, 2015, the City Council voted to terminate Mullendore’s employment.  Mullendore subsequently filed a lawsuit alleging that she was terminated for exercising her FMLA rights.  The district court found in favor of the defendants.

On appeal to the Sixth Circuit, the court first noted that the FMLA theory of interference requires Mullendore to demonstrate that she was terminated because she was on FMLA leave.  The Sixth Circuit found that Mullendore had not created a question of fact as the evidence, at best, only showed that she was terminated during her absence “because it was personally or politically expedient to do so behind her back.”  Without any evidence to show that she was terminated because she had taken FMLA leave, the Sixth Circuit found that Mullendore was unable to make out a case of FMLA interference.  According to the court, “[h]ad she been on vacation or attending a part-time class, the City Council likely could have taken this action with impunity.”  The court saw no distinction to be had between those types of absences and Mullendore’s FMLA leave and affirmed the lower court decision.

Although the Sixth Circuit recognized that adverse employment actions can be permitted during FMLA leave and affirmed summary judgment in this particular case, it remains true that these types of cases turn on a fact intensive, case-by-case analysis.  The favorable outcome in Mullendore should thus not be read as granting carte blanche rights to employees who are on FMLA leave as the uncertainty of the fact-specific analysis employed in adjudicating these issues makes these types of cases risky and outright dangerous.  While timing will always militate against the employer’s legitimate, nondiscriminatory reason for termination, their remains no ironclad rule that you cannot terminate an employee while on FMLA leave.  An employer’s best defense in these situations would be to point to facts and circumstances that predate the FMLA leave as these are untainted by the leave and bolster the employer’s justification for their conduct.  Work related issues that are unrelated to the leave arising during FMLA leave can also call for an employee’s termination.  Without a hard and fast rule, these cases will necessarily turn on the specific facts and circumstances surrounding a particular employee and should be thoroughly considered by any employer seeking to terminate an employee while on FMLA leave.

Should you have any questions concerning the appropriateness of terminating an employee while they are on FMLA leave or any other aspect of the FMLA, please contact our firm.