Performance and Termination Decisions Under the FMLA and ADA

Avoiding Retaliation Claims and Litigation When Disciplining or Discharging Employees on Protected Leave

Recording of a 90-minute CLE webinar with Q&A

Conducted on Wednesday, October 31, 2018

Recorded event now available

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Program Materials

This CLE webinar will prepare employment counsel to navigate difficult performance and termination decisions that arise while an employee is on job-protected leave. The panel will outline an employer’s obligations under the Family and Medical Leave Act (FMLA), Americans with Disabilities Act (ADA) and other leave protection laws, and best practices for documenting performance issues and disciplinary actions and avoiding retaliation claims.


Terminating or disciplining an employee for performance or disciplinary reasons is difficult under the best of circumstances. Terminating or disciplining an employee who is on job-protected leave adds layers of complexity and can expose an employer to costly claims and lawsuits for retaliation and interference.

The FMLA, ADA and state workers’ compensation statutes all protect employees who need to take time off from work because of medical, disability or family issues. These laws intersect and overlap, and in some cases, all three may protect an employee.

Disciplining or discharging an employee who is on leave or recently returned from absence is fraught with litigation risks. Courts scrutinize timing of filed claims, and employers must have documentation supporting the action.

Listen as our experienced panel of employment attorneys discusses strategies for navigating difficult performance and termination decisions when they arise while an employee is on job-protected leave. The panel will discuss how the FMLA, ADA and state workers’ compensation leave laws intersect and outline best practices for handling performance issues and avoiding retaliation claims.



  1. Briefing on federal and state leave protection laws
  2. Documentation best practices
  3. Timing considerations
  4. Strategies for overcoming abuse
  5. Review of recent case law
  6. Best practices to avoid retaliation claims


The panel will review these and other relevant issues:

  • How can employers respond to common types of employee leave abuse without violating the law?
  • How can employers ensure compliance in situations where they must navigate multiple laws regulating employee leave?
  • How can employers approach disciplining an employee claiming entitlement to leave, special ADA consideration or workers’ comp?
  • What are the best practices to implement to avoid retaliation/discrimination claims under the FMLA, ADA or workers’ comp?
  • When is it permissible to terminate an employee on FMLA leave?
  • How do courts evaluate timing issues in retaliation cases?


Berg, Alexander
Alexander P. Berg

Kollman & Saucier

Mr. Berg is familiar with issues arising under Title VII of the Civil Rights of 1964, the FLSA, FMLA, ADA, and ADEA, as...  |  Read More

Turner, Sarah
Sarah N. Turner

Gordon Rees Scully Mansukhani

Ms. Turner's litigation experience includes defending employers in wrongful discharge, discrimination, harassment,...  |  Read More

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