The Court of Appeals of North Carolina recently held that an employer didn’t interfere with an employee’s rights under the Family Medical Leave Act (“FMLA”) or retaliate against her by contacting her to schedule her disciplinary hearing while she was on FMLA leave. Jennings v. Univ. of N.C., N.C. Ct. App., No. COA16-1031, 7/5/17.

Crystal Jennings (“Jennings”) was hired in January 2010 by Elizabeth City State University (the “University”) to work in the University’s Department of Information Technology. In January 2014, Jennings applied for, and was granted, FMLA leave due to her ongoing battle with cancer. During her leave, the University contacted her to schedule a disciplinary conference relating to allegations, that occurred prior to her leave, that she had “accessed, copied, and stored emails and confidential information…without proper authority or a legitimate business need” prior to her taking leave. Jennings failed to attend the conference and was ultimately terminated for abusing her privileges as a network server and Microsoft Exchange administrator. Jennings subsequently filed claims against the University alleging wrongful termination in violation of North Carolina’s whistleblower protections and violations of FMLA. Specifically, Jennings claimed that the University wrongfully interfered with her FMLA leave by holding pre-disciplinary conference and subsequent terminating her employment.

In order to make out an interference claim under the FLMA, and employee must demonstrate that (1) she is entitled to an FMLA benefit; (2) her employer interfered with the provision of that benefit; and (3) that the interference caused harm. See Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81, 89 (2002). However, this does not mean that an employer is prevented from disciplining or terminating an employee for poor performance while the employee is out on FMLA leave. Mercer v. Arc of Prince Georges Cty., Inc., 532 F. App’x 392, 396 (4th Cir. 2013).

In fact, Jennings did not claim that the interference was in response to her use of FMLA leave; instead, she asserts that the scheduling of the disciplinary conference during her FMLA leave was the interference and violation of the Act. The Court disagreed with this assertion and found that the University had the right under FMLA to discipline the employee while she was on leave.

The takeaway for employers is that they can proceed with disciplinary action against an employee who is out on FMLA leave for poor performance that occurred prior to the leave request. However, the performance issues should be well documented to enable the employer to protect itself from an FMLA interference or retaliation claim.