The U.S. District Court for the Middle District of Pennsylvania recently upheld an employer’s decision to terminate an employee under its policy against excessive absenteeism, in spite of the fact that the former employee had previously taken leave under the Family and Medical Leave Act (“FMLA”), because the absences at issue were not related to her FMLA qualified condition. See Bertig v. Julia Ribaudo Healthcare Grp., LLC, 2017 WH Cases2d 390378 (M.D. PA 2017).

The employee in this case worked as a nurses’ aid in a nursing home. She also was diagnosed with bladder cancer and asthma during her employment. The employee completed the necessary FMLA paperwork relating to these conditions and took FMLA leave from May 29, 2012 to June 25, 2012. However, during the next year, the employee missed an additional thirteen days of work. According to the employer’s call-in records, the absences were for various reasons, i.e. foot pain, stress fracture in her foot, common cold, sore throat, etc.; however, none of the absences were related to either of her FMLA qualifying conditions.

The employer had a company policy which stated that termination may occur when an employee accrues seven absences within a twelve month period. After identifying that the employee had violated this policy with her thirteen absences, the employee was contacted and informed that she was being terminated for excessive absences. The employee filed a complaint on November 19, 2015 asserting causes of action for interference and retaliation under the FMLA and disability discrimination and failure to accommodate under the Americans with Disabilities Act (“ADA”). The employer subsequently filed a motion for summary judgment.

The Court analyzed the requirements for both FMLA interference and retaliation claims and found that the employee’s claims under both causes of action failed because the evidence showed that, although she was entitled to FMLA leave for medical issues relating to both the bladder cancer and asthma, her own stated reasons for the absences showed that the absences were completely unrelated to either of these medical diagnosis. Instead, the employee’s absences were due to foot pain, common cold, etc. None of these ailments entitled the employee to FMLA leave. Therefore, the Court held that the employee’s FMLA causes of action should be dismissed.

The Court next analyzed the employee’s claims under the ADA and determined that, although she qualified as a disabled person under the ADA, her claims failed because she failed to establish that the employer’s decision to terminate her was based on her disability. Furthermore, the Court found that the employee failed to request any additional FMLA leave, so there was no retaliation by the employer. In addition, there was no evidence that the employee ever sought an accommodation from the employer for her disabilities. Because no accommodation was ever sought, she could not bring a failure to accommodate claim under the ADA.

The takeaway for employers is that you aren’t prevented from following your policies and procedures against excessive absenteeism just because an employee has previously taken FMLA leave. If the employee’s reasons for the absences are not related to the FMLA qualifying condition, then you are entitled to proceed with your disciplinary procedures for excessive absenteeism. The entitlement to FMLA leave is not a free ticket for missing work for non-FMLA covered absences.