A Capehart Scatchard Blog

Employee Can Be Fired for Reasons Discovered While on FMLA Leave

By on February 14, 2014 in FMLA with 0 Comments

Adesina Mercer worked for the Arc of Prince George County from 2004 to 2011.  Her job included applying for and processing initial applications for benefits for Food Stamps and Social Security.

In May 2007, The Arc put Mercer on conditional employment status due to poor work performance.  She was returned to regular status the next month. However, while she was on medical leave in 2009, her co-workers discovered that many of the Arc’s food-stamp-eligible clients were no longer receiving benefits.  When Mercer returned to work, this issue was addressed with her and she was instructed to take steps to renew those clients’ benefits.

In October 2010, Mercer received a performance review which was largely average with only one category being above average.  The next month, The Arc once again discovered that some food-stamp-eligible clients were not receiving benefits.  Mercer was provided with a list of clients and told to pursue reinstatement of benefits.

Mercer countered that these kinds of lapses in benefits were fairly commonplace.  She felt that she should not be reprimanded for these lapses.

In January 2011, Mercer was involved in a car accident with injuries that kept her out of work for about three weeks.  She requested and obtained FMLA leave.   While Mercer was on leave, other workers performed her job and discovered again that there were many more eligible clients not receiving benefits due to Mercer’s failure to submit renewal or redetermination requests.

Mercer returned to work on February 22, 2011 and was placed on administrative leave due to poor job performance.  At the end of the five-day administrative leave period, Mercer sought additional FMLA leave until March 14, 2011.

The investigation of Mercer continued, leading The Arc to conclude Mercer grossly deviated from her job’s requirements and failed to obtain Food Stamp benefits for 99 of 160 eligible clients.  For this reason her employment was terminated during her FMLA leave.

Mercer sued and argued that her termination constituted unlawful interference with the exercise of her FMLA rights.  The Arc moved to dismiss the case, and the district court ruled for the Arc.  Mercer appealed to the Fourth Circuit Court of Appeals.  The Court said that “being on FMLA leave does not provide an employee any greater rights than he or she would have had without taking leave, and an employee’s right to reinstatement is not absolute.”

An employer has discretion to discipline or terminate the employment of an at-will employee for poor performance regardless of whether the employer’s reason for terminating the employment was discovered while the employee is taking FMLA leave.

Mercer argued that her employer improperly used her leave request to generate a reason for termination.  The Court said the fact that the leave permitted The Arc to discover the problems with Mercer’s job performance could not logically be a bar to the employer’s ability to fire a deficient employee.

The case is helpful because it demonstrates an important rule, namely that an employee on FMLA leave is not entitled to greater rights than the employee would have had without taking leave.  The case can be found at Mercer v. The Arc of Prince George County, Inc., 2013 U.S. App LEXIS 14060 (4 Cir. 2013).


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About the Author

About the Author:

John H. Geaney, a shareholder and co-chair of Capehart Scatchard's Workers' Compensation department, began an email newsletter entitled Currents in Workers’ Compensation, ADA and FMLA in 2001 in order to keep clients and readers informed on leading developments in these three areas of law. Since that time he has written over 500 newsletter updates.

Mr. Geaney is the author of Geaney’s New Jersey Workers’ Compensation Manual for Practitioners, Adjusters & Employers. The manual is distributed by the New Jersey Institute for Continuing Legal Education (NJICLE). He also authored an ADA and FMLA manual as distributed by NJICLE. If you are interested in purchasing the manual, please contact NJICLE at 732-214-8500 or visit their website at www.njicle.com.

Mr. Geaney represents employers in the defense of workers’ compensation, ADA and FMLA matters. He is a Fellow of the College of Workers’ Compensation Lawyers of the American Bar Association and is certified by the Supreme Court of New Jersey as a workers’ compensation law attorney. He is one of two firm representatives to the National Workers’ Compensation Defense Network. He has served on the Executive Committee of Capehart Scatchard for over ten (10) years.

A graduate of Holy Cross College summa cum laude, Mr. Geaney obtained his law degree from Boston College Law School. He has been named a “Super Lawyer” by his peers and Law and Politics. He serves as Vice President of the Friends of MEND, the fundraising arm of a local charitable organization devoted to promoting affordable housing.

Capehart Scatchard is a full service law firm with offices in Mt. Laurel and Trenton, New Jersey. The firm represents employers and businesses in a wide variety of areas, including workers’ compensation, civil litigation, labor, environmental, business, estates and governmental affairs.


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