Eighth Circuit: FMLA Does Not Provide Protection from Attendance and Performance Issues


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December 13, 2022



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Key Takeaways

  • Employers who properly document and communicate performance and attendance issues may terminate them for policy violations even if the employee is on Family and Medical Leave Act leave.
  • The performance and attendance issues must be unrelated to the leave taken under the Family and Medical Leave Act.
  • Failure to properly document non-FMLA violations of employer policy could lead to allegations that the employer indeed violated FMLA resulting in fines and damages in civil actions.


In Corkrean v. Drake University, the Eight Circuit Court of Appeals said an employee with attendance and performance issues who exercises rights under the Family and Medical Leave Act (FMLA) does not have protection against termination for reasons that are unrelated to FMLA leave. Here, an employee with multiple sclerosis came under scrutiny by the new dean of the university for performance and inconsistent attendance. The employee then requested and was approved for FMLA leave. The employee continued to miss work for non-FMLA reasons and without providing notice. As a result, the employee was counseled by the dean for both attendance and performance eventually leading to placement on a performance improvement plan. The employee repeatedly also complained that the performance and attendance counseling was harassment. Ultimately, the employee’s performance and attendance did not improve and resulted in her termination. She sued for violations of the FMLA and the Americans with Disabilities Act (ADA).

The Court found the employee offered no evidence that the employer terminated her as a pretext for discrimination or retaliation for exercising her rights under the FMLA and the ADA. The employer had a well-documented record of her non-FMLA leave attendance issues as well as a months-long performance improvement process. Since the employer was thorough in separating the documentation of FMLA and non-FMLA, they were able to provide evidence that the employee’s termination was not unlawful. This case shows employers the value of well-documented performance and attendance issues as well as communicating those issues to the employee.

Action Items

  1. Review procedures for documenting performance and attendance issues.
  2. Train appropriate personnel on documentation and communication processes.
  3. Review terminations involving employees on FMLA leave or ADA reasonable accommodations with legal counsel.
  4. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser. © 2023 ManagEase