Scene: Employee has performance issues. Employee notifies his supervisor that he needs leave for a medical condition. Employee calls in sick for two consecutive days, a Thursday and Friday, and returns to work the following Monday. Upon return, the employee tells the supervisor that he will need additional days off and requests the FMLA application and certification paperwork. A few days later, the employer notifies the employee that he is being terminated for performance reasons. What is the potential liability for the employer?

This hypothetical is commonplace. Indeed, in Spakes v. Broward County Sheriff’s Office, the federal Court of Appeals sitting in Atlanta upheld a jury verdict in favor of an employee who asserted FMLA claims against her former employer. In that case, a jury awarded the employee, Diane Spakes, back pay, prejudgment interest, liquidated damages, five years of front pay, and attorneys’ fees after finding the employer interfered with Ms. Spakes’ FMLA rights. Her employer, the sheriff’s office, terminated Ms. Spakes less than a week after she requested FMLA to treat a medical infection. Although the employer claimed it discharged Ms. Spakes for performance reasons, the jury found that Ms. Spakes gave proper notice for FMLA leave, she was terminated because of her FMLA request, and she would not have been terminated but for her request.

Notably, on appeal, the employer argued that the trial court erred by not requiring Ms. Spakes to prove a “causal nexus” between her leave request and her termination. However, the appellate court held that a causal nexus is not required for an FMLA interference claim, although the employer can raise lack of causation as an affirmative defense. Holding that the employer’s motives are irrelevant, the court stated, “[t]o prove FMLA interference, an employee must demonstrate that he was denied a benefit to which he was entitled under the FMLA.”

Spakes demonstrates the tightrope employers face when disciplining an employee who seeks to exercise or is exercising FMLA. The key to prevailing in these types of cases is documentation. Human resources managers and legal counsel should ensure that the employee’s performance issues were well-documented — before the employee has requested FMLA. If a termination decision already had been made before the FMLA request, that decision should be memorialized in a memorandum that clearly states the reasons for the employee’s discharge. Alternatively, employers should proceed carefully if an employee requests FMLA, but a final decision had not been made regarding termination — or, at a minimum, that progressive discipline had not already started before the FMLA request. Because it is less risky, the employer should consider whether to allow the employee to take the FMLA leave, and wait to address the performance issues upon the employee’s return. Proceeding cautiously also will permit the employer to better document its legitimate reasons for discipline or termination and to ultimately prevail in an FMLA interference or retaliation case.