California workers as well as their employers may want to take note of a federal appellate court ruling issued on Jan. 18. It means that employees cannot necessarily use a disability or the Family and Medical Leave Act as excuses in regards to termination for misconduct and work performance. Therefore, in most of these situations, the employer’s assessment of the facts will matter more than the employee’s theory when it comes to the type of punishment the employee will receive for their misconduct or poor work performance.

The issue began when the plaintiff, who was a customer service representative and who uses insulin for Type I diabetes, was on a last chance agreement because of a past poor work performance incident. During one of her shifts, she reportedly hung up the telephone on her customers at least twice. The plaintiff denied the allegations, claiming she had a diabetes-related low blood sugar incident at the time. However, no other evidence existed to support her assertion, and she failed to report having any medical issues until after she was confronted about additional disciplinary measures or discharge.

Thus, it was concluded that her actions were intentional and deserved discharge. The Tenth Circuit ruled that employers in such instances are not obligated to let an employee’s version of the facts, or a previous use of FMLA leave or a simple pre-existing disability, dictate disciplinary measures by an employer because of the employee’s poor work performance or misconduct.

By law, employers are not allowed to harass, prohibit or discriminate against any employee who rightfully takes FMLA leave. Those whose employer has denied them leave, or who have experienced discrimination for taking family leave might want to speak with an attorney for direction.

Source: National Law Review, “Employee’s ‘Alternative Facts” Can’t Overcome Summary Judgment for Employer”, David Wiley, Jan. 23, 2017