A recent case reminds employers that they can hold employees accountable for their misconduct, even under the Family and Medical Leave Act.

In Tatum v. Southern Co. Servs. Inc., the employee had been subject to repeated coaching and counseling for inappropriate behavior over his years of employment. On January 20, 2017, there was another incident of inappropriate behavior, and when the plant manager met with him to discuss it, the employee was unapologetic, which cause the plant manager to contact Human Resources to discuss escalating his discipline. That same day, the employee requested FMLA leave. In addition, later that day, the employee reported that he had observed a potentially fatal safety risk created by a co-worker over a month earlier. His request for FMLA leave was subsequently approved, but a day later, he was terminated for failing to correct his inappropriate behavior and failing to report timely the serious safety risk. He then sued, alleging violation of his rights under the FMLA.

The U.S. Court of Appeals for the Fifth Circuit found that the employer had articulated a legitimate reason for the employee’s termination – his continuation of inappropriate behavior after years of counseling and coaching, including the failure to report a potentially fatal safety risk for over a month. The employer had made it clear for years that his conduct was unacceptable.