Employers are often faced with the dilemma of an uncooperative poorly performing employee who tries to escape the consequences of that poor performance by invoking rights under the FMLA. The employer faces a hard choice as to whether the poor performer can be terminated after an employee asks for FMLA leave. The U.S. Court of Appeals for the Fifth Circuit has now made that choice easier. Mauder v. Metropolitan Transit Authority of Harris County, Texas, 446F.3d 574, (5th Cir., 2006).
The facts went like this: Kenneth Mauder was working for METRO in Harris County. His supervisor was Ms. Watkins. Mauder was experiencing diarrhea problems because of a drug used to control his diabetes. Ms. Watkins set firm accountability standards for the employees under her, including specific time for break periods. Mauder received three tardies for inappropriate breaks. Mauder claimed he needed longer breaks because of the diarrhea problem. Watkins asked for medical information related to the condition. Mauder refused and told Watkins that she had been given enough already. Mauder refused to complete the FMLA form to get intermittent leave. Watkins refused to withdraw the tardies and grant leave without medical information.
Mauder’s performance deteriorated. Watkins documented on three occasions continued poor performance. Mauder demanded FMLA leave from October 4 to October 19 because he maintained his condition had worsened. Before Mauder filled out the FMLA forms, Watkins fired Mauder on October 11 for poor performance and not meeting performance deadlines. Mauder filed suit against METRO claiming METRO failed to provide FMLA leave and retaliation.
The Fifth Circuit sided with METRO. The Fifth Circuit was adamant that the FMLA requires cooperation from employees and Watkins was not required to provide FMLA leave to Mauder without more medical information. The Fifth Circuit also tossed the retaliation claim out because Mauder was told if his performance did not improve, he would be terminated. Therefore, the Court held this termination “could not” and “did not” come as a surprise.
From this case, employers can learn that good follow-up and clear documentation by a supervisor can protect the employer from liability under the FMLA. A well-trained supervisor keeps the employer in the driver’s seat. The employer should be consistent in demanding medical certification before granting unpaid leave under the FMLA. Employees can be asked to try to take time off for therapy and other treatments after work hours, if it is available. The employer can explore whether alternatives such as after work treatment are available before granting intermittent leave. A carefully executed approach to FMLA leave cannot guarantee that the employer will not be sued. However, if the Fifth Circuit is called upon to review an FMLA claim and the employer follows the consistent pattern established by Watkins of Metro the Mauder court tells us the employer can be successful in having the employee’s claims tossed out.
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